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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Douglas v. State (08/14/2009) sp-6399

Douglas v. State (08/14/2009) sp-6399

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
     e-mail corrections@appellate.courts.state.ak.us.


            THE SUPREME COURT OF THE STATE OF ALASKA


TY S. DOUGLAS, )
) Supreme Court No. S- 12857
Petitioner, )
) Court of Appeals No. A-8997
v. ) Superior Court No. 1KE-02-1684 CR
)
STATE OF ALASKA, ) O P I N I O N
)
Respondent. ) No. 6399 - August 14, 2009
)

          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from   the  Superior  Court,  First  Judicial
          District  at Ketchikan, Michael A.  Thompson,
          Judge.

          Appearances:  David D. Reineke and  Alexandra
          Foote-Jones, Assistant Public Defenders,  and
          Quinlan  Steiner, Public Defender, Anchorage,
          for   Petitioner.   Tamara   E.   de   Lucia,
          Assistant Attorney General, Office of Special
          Prosecutions  and  Appeals,  Anchorage,   and
          Talis  J. Colberg, Attorney General,  Juneau,
          for Respondent.

          Before:     Fabe,  Chief  Justice,  Matthews,
          Eastaugh, Carpeneti, and Winfree, Justices.

          EASTAUGH, Justice.
          FABE,  Chief  Justice,  with  whom  MATTHEWS,
          Justice, joins, dissenting.
I.   INTRODUCTION
          After  Ty Douglas repeatedly and egregiously misbehaved
during  pretrial hearings for two years, the trial court excluded
him  from  the  courtroom during his jury  trial  on  charges  of
witness  tampering  and  unlawful contact,  but  allowed  him  to
participate by speakerphone.  Midtrial Douglas asked  to  testify
in  person.   The trial court denied this request  after  finding
that  Douglass promise to behave was not credible.  After Douglas
was  convicted,  the  court  of appeals  affirmed.   Douglas  has
petitioned for hearing.
          A  trial  court  may exclude a criminal  defendant  for
disruptive  behavior.  Although the court must allow an  excluded
criminal  defendant an opportunity to reclaim  his  right  to  be
present  if  he demonstrates willingness to behave appropriately,
it is not obliged to uncritically accept every promise to behave.
The  trial court did not abuse its discretion either by  removing
Douglas  from the courtroom or by refusing his later  request  to
reenter.   We  therefore  affirm the  court  of  appeals  opinion
affirming Douglass conviction.
II.  FACTS AND PROCEEDINGS
          Ty  Douglas  was  charged with sexually assaulting  and
beating his girlfriend, K.I.1  Douglas was prohibited from having
any  contact with K.I. while the assault case was pending.  While
Douglas was in custody awaiting trial on those charges, 828 calls
to  K.I. were placed from the jail where Douglas was being  held.
K.I.  wrote  a  letter  to  the district attorney  recanting  her
allegations  that Douglas had assaulted her and saying  that  she
caused  her own injuries.  Shortly thereafter K.I. told a  police
officer that Douglas had been calling her from the jail and  that
she  had  been taking his calls.  Consequently, in October  2002,
even  before  the  assault case went to trial, Douglas  was  also
charged with three counts of first-degree witness tampering,2 ten
counts  of  first-degree unlawful contact,3  and  ten  counts  of
attempted first-degree unlawful contact.4
          The  assault case went to trial first.  Superior  Court
Judge  Larry R. Weeks presided.5  Douglas was apparently  present
in  the  courtroom  during the trial.6   When the  jury  returned
guilty  verdicts on all of the assault charges, Douglas  spat  at
the  jurors  and  spectators and said he  hoped  they  contracted
diseases.7  Judge Weeks ordered Douglas physically restrained  at
all   further  hearings  in  the  assault  case.8   The   assault
convictions were ultimately affirmed on appeal.9
            The  trial  on  the  witness tampering  and  unlawful
contact  charges was assigned to Superior Court Judge Michael  A.
Thompson,  but  trial  was delayed pending  the  outcome  of  the
assault case.
          During the two-year period in which Judge Thompson held
a  series  of  pretrial hearings in the witness  tampering  case,
Douglass behavior was gravely disruptive and disrespectful.   The
court  of appeals published opinion accurately describes Douglass
misbehavior in great detail.10  Douglas frequently interrupted the
proceedings  in the witness tampering case, often to argue  facts
relevant only to the sexual assault case.  He repeatedly insulted
the  prosecutor,  his  own attorneys, and Judge  Thompson  during
          these hearings.  The court of appeals stated:
          [At  a  calendar  call on January  16,  2004]
          Douglas told Judge Thompson that he wanted to
          represent  himself.   Douglas  then  launched
          into a lengthy recitation of complaints about
          the  way  his former attorney had  mishandled
          the sexual assault trial.  Douglas proclaimed
          his  innocence, and he suggested that he  had
          been convicted of sexual assault through  the
          bad   faith  and  improper  conduct  of   the
          authorities,  as well as the incompetence  of
          his own attorney.
          
          . . . .
                    
          Toward  the end of [a March 2, 2004] hearing,
          Douglas  suddenly erupted with invective  and
          charges of corruption against the prosecutor.
          Douglas  himself  suggested  that  he  should
          participate    telephonically    in    future
          hearings, so that he would not have  to  look
          at the prosecutor.
          
          .   .   .   (Extensive  transcript   passages
          omitted.)
          
          [O]n  June  3,  2004, Judge Thompson  held  a
          hearing[,  at which Douglas appears  to  have
          been present in court,] to set a date for the
          witness tampering trial.
          
          . . . .
          
          Douglas   .  .  .  interrupted  [the  court],
          proclaiming at length that the prosecutor was
          suppressing   evidence   that   would    have
          demonstrated  his  innocence  of  the  sexual
          assault  charges, and that his  own  attorney
          was  refusing or neglecting to file important
          motions.    During   his   remarks,   Douglas
          insulted  and swore at his own attorney,  the
          prosecutor, and Judge Thompson.  In the  end,
          Douglass  behavior  led  Judge  Thompson   to
          declare  that Douglas would be excluded  from
          further hearings in the case.
          
          .   .   .   (Extensive  transcript   passages
          omitted.)
          
          The pre-trial motion hearing was held on June
          14th. . . . Douglas . . . personally attended
          this hearing.
          
          . . . .
          
          Douglas   again  gratuitously  insulted   the
          defense  attorney, declared that the attorney
          was incompetent, and asked Judge Thompson  to
          dismiss  the attorney and appoint a new  one.
          Douglas also again gratuitously insulted  the
          prosecutor  and declared that the  prosecutor
          was guilty of criminal conduct.
          
          Toward  the end of this conversation, Douglas
          launched  into a soliloquy that was unrelated
          to  the  procedural issues that the attorneys
          and the judge were discussing  a soliloquy in
          which  Douglas  asserted  that  the  evidence
          showed  that  he was innocent of  the  sexual
          assaults.
          
          Based  on  Douglass behavior, Judge  Thompson
          again ruled that Douglas would not be allowed
          to attend the trial.
          
          .   .   .   (Extensive  transcript   passages
          omitted.)
          
          [On  June  15,  2004, Judge Thompson  ordered
          that    Douglas    undergo    a    competency
          evaluation.]
          
          .   .   .   (Extensive  transcript   passages
          omitted.)
          
          [T]oward  the  end  of  August  2004,   Judge
          Thompson  held  a  hearing  to  announce  the
          result   of   the  mental  examination:   the
          psychologist  from  API  had  concluded  that
          Douglas was competent to stand trial.
          
          . . . .
          
          When  Judge Thompson announced the result  of
          the mental evaluation, Douglas responded with
          another  rambling protestation  that  he  had
          been   unjustly  convicted  of   the   sexual
          assaults,  and he again asked Judge  Thompson
          to  appoint him a new attorney, but the judge
          again refused.[11]
          Douglas  had  three noteworthy outbursts that  are  not
described  in  detail in the court of appeals  opinion.   At  the
January  16,  2004 calendar call, Douglas asked about prosecuting
the  prosecutor  for  perjury and called the  prosecutor  a  Nazi
bastard.   At  an August 20, 2004 status hearing, Douglas  argued
that  his  attorney  should be removed.  He  also  discussed  the
evidence  from  the assault trial and argued that he  should  not
have been convicted in the assault trial because the victim was a
liar.   On August 27, 2004, there was another outburst, which  we
describe in detail below.
          Douglas  also  had  difficulty  dealing  with  his  own
attorneys.   He  was  represented by  at  least  seven  different
attorneys  in  the  superior court,12 and he struck  one  of  the
attorneys who represented him on the witness tampering charges in
the face.
          During   the   hearings  in  which  Douglas   exhibited
disruptive  conduct, Judge Thompson repeatedly  interjected  when
Douglas  discussed facts relevant only to the assault  case,  and
stated  there was nothing he, Judge Thompson, could do about  the
assault  trial.   Judge Thompson also repeatedly  warned  Douglas
that  if he continued to engage in disruptive behavior, he  would
be removed from the courtroom.
          The  jury  trial on the witness tampering  charges  had
been  scheduled to begin June 15, 2004.  On June 3,  2004,  Judge
Thompson stated from the bench that he planned to exclude Douglas
from  trial because Douglas could not control himself.   On  June
14,  2004,  Judge Thompson reiterated that intention,  explaining
that  the  jury . . . would be looking for ways . . . to throttle
Mr.   Douglas,  if  not  convict  him,  and  .  .  .  under   the
circumstances  he cant get a fair trial if hes in the  courtroom.
Douglas  was  present in the courtroom when Judge  Thompson  made
these  comments.   Douglas certainly heard and responded  to  the
remarks.  The next day Judge Thompson concluded that Douglas  had
forfeited  his  right to be present, because Douglas  refused  to
behave  himself  despite what Judge Thompson  called  the  courts
pressuring and cajolery and threats.  Judge Thompson stated  that
Douglas would just simply prejudice the jury against himself  and
that  he  was  not willing to subdue Douglas with  mechanical  or
medical  means just so Douglas could be present in the courtroom.
Douglass attorney objected to the exclusion.  Judge Thompson said
that  the  court  would  take frequent breaks  to  give  Douglass
attorney an opportunity to confer with Douglas.
          On June 15, 2004, when the trial was about to commence,
Judge Thompson ordered a competency evaluation at the request  of
Douglass attorney, and continued the trial until August 31.   The
psychologist  who  evaluated Douglas reported  that  Douglas  was
competent  to stand trial and that [t]o the extent that  he  does
not cooperate with his attorney, it is because he chooses not  to
do  so.   The  psychologist stated that Douglas  was  capable  of
conforming  his behavior to courtroom protocol but was  just  not
willing  to  do so, and that Douglas can be expected to  publicly
vent his frustration as a form of protesting his circumstances.
          On  August 27, 2004, at the final status hearing before
the   rescheduled  trial,  Douglas  was  again   disruptive   and
disrespectful.   He interrupted the proceedings  to  argue  facts
relevant  only  to  the assault case, accused the  prosecutor  of
misconduct and called him insane, and called his own attorney  an
idiot and a liar.  Douglas told the court this is the reason  why
America  is  trashed.  Its from people like you [Judge  Thompson]
and   and  this  defense attorney.  You people are bringing  this
country  down  to  its knees on frivolous bullshit.  .  .  .  You
liberal assholes.
          The   following  passage,  from  the  August  27  final
pretrial hearing, typifies the tone and substance of what Douglas
had  been saying at hearings for nearly two years in the  witness
tampering case:13
          [I]t was an illegal sentencing and an illegal
          conviction because false evidence  was  given
          to  the jury, false evidence by [the district
          attorney].  Theres no way that  he   he  just
          embellished everything that  embellishing,  I
          mean  he  made  things up, that  fisting  and
          there  was  no  blood  in  the  vagina,   you
          know  . . . and there was a Pap smear.  There
          was a Pap smear and he said I was fisting her
          and she was drenched in blood.
          
          . . . .
          
          There  was  no test that concluded that  that
          blood  came  from there.  There  was  nothing
          wet.   The only thing  body bleeding  was  me
          and  one of her hemorrhoids for being  kicked
          after  while she was biting my thumbnail.
          
          . . . .
          
          Im  going to win my appeals.  Theres no  way,
          theres no proof of penetration here and thats
          what  it takes, and she bit my thumb.  I mean
          she bit my thumb.  She admitted to biting  my
          thumb  and  she admitted that  I  kicked  her
          while she was biting my thumb, and those  are
          the  only marks that she has on her.  Nothing
          nothing  internal, nothing  wrong  with  her.
          The evidence proves it.
          
          Douglass  three-day jury trial began August  31,  2004.
Per  Judge Thompsons previous ruling, Douglas was not present  in
the  courtroom.  Department of Corrections personnel held Douglas
in  a different room in the courthouse, where he was permitted to
listen  to  the proceedings by speakerphone.  On the  first  day,
before  jury  selection  began, Douglas,  via  the  speakerphone,
interrupted  a pretrial evidentiary hearing to again argue  facts
relevant only to the assault case.  Judge Thompson stated that he
was  excluding  Douglas because Douglas wouldnt  or  couldnt  let
anybody else get a word in edgewise.  Judge Thompson stated  that
we  just  cant get anything done with him in here,  and  that  he
could  not  subject  the  jury  to Douglass  misbehavior.   Judge
Thompson  reiterated his willingness to take breaks  and  provide
Douglas with paper and pen so Douglas could communicate with  his
attorney.
          Evidentiary hearings and jury selection took  place  on
August  31,  and  the state presented its case  on  September  1.
Douglas  was  not in the courtroom when the state  presented  its
case.   K.I.  testified that she spoke to Douglas  at  least  ten
times  while he was in custody, that he attempted to contact  her
on  other  occasions,  and that during at  least  four  of  those
conversations he asked her to change her story about the assault.
K.I. had written a letter to the district attorney recanting  the
assault  allegations, but she testified that she sent the  letter
at Douglass request and that its contents were untrue.
          After  the  state rested and the jury was  out  of  the
courtroom,  Douglas  informed the court by speakerphone  that  he
wished  to  testify, but only if he could do so  in  person.   In
explaining why he wanted to testify, Douglas stated that allowing
K.I. to testify outside of his presence was the biggest farce [he
had]  ever heard of, and that he wanted [the jury] to see a  face
rather  than  a picture.  The prosecutor expressed concern  about
Douglass spitting and lunging behavior during the assault  trial.
Judge  Thompson said he had no intention of allowing  Douglas  in
the  courtroom  while  the jury was there.   Douglas  called  the
prosecutor  and the court fucking moron[s].  Judge Thompson  then
allowed Douglass microphone to be cut off and stated:
               The point is he wants to testify but  he
          cant   confine  himself  either  to  relevant
          matter,  he  wont answer questions,  I  mean,
          because Ive tried to ask him questions during
          hearings.   He will not pay any attention  to
          the  question  I  ask,  he  wont  answer  the
          question  I  ask;  he  just  wants  to   make
          speeches.    And  his  speeches  ramble   and
          include  all  kinds  of prejudicial  material
          that  I  would  never  admit  against  either
          [K.I.]s  interest, against [the  prosecutor],
          against his own attorney, aside from what  he
          thinks  about me.  And, you know, I think  we
          all have to face the facts.
          
               If  he comes in here and carries on like
          this,  which is the only way I can assume  he
          will  carry on because every hearing Ive  had
          with  him for the last six months hes carried
          on like this, the jury is going to make short
          work  of  the  verdict in this case.   Theyre
          going to see somebody that probably ought  to
          be  locked up, and thats all theyre going  to
          see.   And  I  think hes going  to  prejudice
          himself.
          
               I  dont take it lightly because this, in
          effect,  strips him of certain constitutional
          rights,   but,  you  know,  hes   doing   the
          stripping,  Im not.  I mean just simply  cant
          permit  him  to  come in here and  turn  this
          place into a circus or a wrestling match  and
          Im just not going to do it.
          
               So  I think I understood what he said is
          what  he  just said, among other things,  was
          that, no, he wont testify unless hes going to
          be  able to sit here and look the jury in the
          eye  while  he does it.  I wish he  could  do
          that.   I  wish  it were so.  I cant  permit,
          though, Mr. Douglas to come up here and carry
          on  in  this  fashion,  in  this  high-handed
          fashion that he insists on doing.
          
          Judge Thompson allowed Douglass microphone to be turned
back  on  so his attorney could ask Douglas whether he wished  to
testify over the speakerphone.  Douglas reiterated his request to
testify  in person, stating that he wished to tell the  story  of
this  entire episode and exhibit the proof, which my lawyers  did
not  do,  and  that  he  had  all the proof,  documents,  medical
records, everything that proves that she is a liar.         In an
apparent  attempt  to assure the court that he would  not  behave
disruptively in front of the jury, Douglas stated:
          I didnt act up in front of the jury last time
          until after the verdict.  They were fine.  We
          were fine with the jury.  I sat there through
          the whole trial.  I didnt want to mess up  in
          front of the jury and I dont want to mess  up
          in  front of this jury, and I wont. . . .  Im
          not  going to sabotage myself in front of the
          jury.  Im going to show myself calmly.
          
          . . . .
          
          Theres no reason for me to get upset in front
          of  that  jury.   I dont want to  make  those
          people upset.  Now after its over, dont bring
          me  back  in  there for the  reading  of  the
          verdict. . . .  Im not going to act out.
          
After Douglas promised to show [himself] calmly, he discussed  at
length  the  testimony he planned to offer,  much  of  which  was
relevant only to the assault trial.
          Judge  Thompson denied Douglass request to  testify  in
person,  saying  I  cant  bring Mr. Douglas  in  here,  to  which
Douglass  attorney  replied, Im not asking  you  to.   The  court
stated that if Douglas was permitted to testify, the state  would
have  a  right  to  cross-examine Douglas,  and  that  the  court
believed  that  Douglas would not answer their  questions  except
with  invective  and insults, which would require  the  court  to
strike  the  testimony  and leave the jury hopelessly  prejudiced
against Douglas.
          Douglas  did not testify at trial.  The jury found  him
guilty  on  all  submitted  counts.  At  the  November  23,  2004
sentencing,     Judge     Thompson     noted     that     Douglas
sound[ed]  . . . more calm and collected, but Douglas once  again
repeatedly  interrupted the court to discuss facts relevant  only
to the assault case.
          Douglas appealed to the court of appeals, arguing  that
the  trial  court was obliged to allow him to be present  in  the
courtroom   once   he  stated  that  he  would  conduct   himself
appropriately  in  front of the jury.14   The  court  of  appeals
affirmed  his convictions, holding that the trial court  did  not
abuse its discretion in removing Douglas and not allowing him  to
reenter the courtroom during the trial.15
          Douglas   petitioned  for  hearing.   We  granted   his
petition and ordered full briefing to consider whether the  trial
court erred when it initially excluded Douglas from the courtroom
or  when it refused to allow Douglas to return after he asked  to
testify and stated that he would not act out.
III. DISCUSSION
     A.   Standard of Review
          We  have  not  yet  stated what  standard  applies  for
reviewing  trial  court  orders  excluding  disruptive   criminal
defendants  from  trial.   In Illinois v.  Allen,16  the  seminal
Supreme  Court case on the issue, the Court impliedly applied  an
abuse  of  discretion  standard, in  stating  that  trial  judges
confronted  with  disruptive,  contumacious,  stubbornly  defiant
defendants  must  be  given sufficient  discretion  to  meet  the
circumstances of each case, and in holding that the  trial  judge
acted completely within his discretion.17
          In Rae v. State18 the Alaska Court of Appeals, applying
Allen,  reviewed for abuse of discretion a trial courts  decision
to  bind  and  gag  a  defendant  after  disruptive  and  violent
outbursts.19
          We recognize that the decision to remove or restrain  a
disruptive criminal defendant implicates important constitutional
rights, such as the right to confront witnesses, the right to due
process  of law, and the privilege to testify.20  We nevertheless
conclude  that  a trial courts decision to remove or  restrain  a
disruptive  criminal defendant under Allen is subject  to  review
for  abuse  of  discretion.   The trial  court  is  charged  with
maintaining courtroom decorum, and it is in the best position  to
assess how disruptive a defendants behavior is and how likely  it
is  to  continue.  Because a trial courts denial of a  defendants
request to return to the courtroom, whether to confront witnesses
or  testify,  in essence involves the same constitutional  rights
and  institutional  needs  and has an equivalent  effect,  it  is
likewise  reviewed for abuse of discretion.  A court  abuses  its
discretion if it issues a decision that is arbitrary, capricious,
manifestly unreasonable, or stems from an improper motive.21
          We  use  our independent judgment in reviewing  rulings
turning on federal and state constitutional law.22  We adopt  the
rule  of  law  that  is  most persuasive in light  of  precedent,
reason, and policy.23
     B.   Whether  It Was an Abuse of Discretion To Order Douglas
          Removed from the Courtroom
          
          The  right  of  a criminal defendant to be  present  at
every  stage of trial is rooted in the right to confront  adverse
witnesses24  and  the right to due process  of  law.25   But,  as
Douglass  opening brief acknowledges, the right to be present  at
trial  is  not  absolute.  In Allen 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.26
          The Court identified three constitutionally permissible
ways  a  court may handle an obstreperous defendant . . .  :  (1)
bind  and gag him, thereby keeping him present; (2) cite him  for
contempt; (3) take him out of the courtroom until he promises  to
conduct himself properly.27
          Alaska Rule of Criminal Procedure 38(a) also implements
the right to be present as a procedural requirement.28  But Alaska
Rule  of  Criminal Procedure 38(b)(2) allows a trial  to  proceed
without the defendant whenever a defendant, initially present . .
. [e]ngages in conduct which is such as to justify exclusion from
the courtroom.
          Douglass  briefs  do not make it clear  whether  he  is
invoking federal or state constitutional principles, but he seems
to   assume  that  the  standards  are  the  same  under   either
constitution, and that, in any event, Allen controls.
          Allen,  of  course, governs right-to-be-present  claims
based  on  the United States Constitution.  We have never  before
considered  whether  Allen  controls  right-to-be-present  claims
grounded  in the Alaska Constitution or Criminal Rule  38,  i.e.,
whether  to adopt standards more protective than those  announced
in  Allen.   Allen  sets minimal standards  that  we  must  apply
whether   the   defendant  relies  on  the   federal   or   state
constitution.  Neither party argues that Allen does not or should
not apply to state constitutional claims, and neither asks us  to
apply  alternative standards.  The court of appeals assumed  that
Allen applies.29  We therefore assume without deciding that Allen
also  applies to right-to-be-present claims Douglas may  base  on
Alaska law.
          In Allen the Supreme Court upheld a criminal defendants
exclusion for conduct comparable to Douglass.  Allen examin[ed a]
.  .  .  juror  .  .  .  at  great length on  matters  apparently
irrelevant to the jurors qualifications and, when interrupted  by
the   court,  argued  with  the  judge  in  a  most  abusive  and
disrespectful manner.30  Allen also continued to talk after being
asked  not  to,  said to the judge [w]hen I go out for  lunchtime
youre going to be a corpse here, and tore his attorneys file  and
threw papers on the floor.31  Allen continued to talk back to the
judge after being warned that he would be removed.32  After being
allowed  back into the courtroom, Allen was removed again because
he  interrupted the proceedings, saying Im going to start talking
and Im going to keep on talking all through the trial. Theres not
going to be no trial like this.33
          Other  courts, also applying Allen, have upheld removal
for  disruptive  behavior as or less egregious than  Allens.   In
United  States  v. Nunez, the trial court removed  the  defendant
from  the  courtroom after he twice interrupted  the  prosecutors
examination, once by calling the witness on the stand a liar  and
another  time by talking in a loud voice and gesturing  with  his
hands.34   The  United  States Court of  Appeals  for  the  Tenth
Circuit, observing that the defendant was given a warning  before
being  removed,  held  that the district court  did  not  err  in
removing the defendant from the courtroom.35  In Chavez v. Pulley,
a  habeas  case, the district court for the Eastern  District  of
California  held  that the state trial court did  not  abuse  its
discretion   when  it  removed  the  defendant  for  persistently
interrupt[ing] the judge despite the latters warnings  concerning
his  behavior.36  And in State v. Chapple, the Washington Supreme
Court held that the trial court did not abuse its discretion when
it  removed  the  defendant  for  interrupting  the  proceedings,
          speaking disrespectfully, and introducing information about his
previous trial that might have prejudiced the jury.37
          Douglass behavior was no less egregious than that which
has  been held sufficient to justify exclusion.  It appears Judge
Thompson  was  aware  as early as November 2003  that,  when  the
verdicts were returned in Douglass assault case, Douglas spat  at
the  jurors and spectators and said that he hoped they contracted
diseases.38   During pretrial hearings in the  witness  tampering
case,  including  a  hearing on the first day of  trial,  Douglas
frequently  interrupted the proceedings,  often  to  argue  facts
relevant  only  to  the  assault  case  despite  Judge  Thompsons
repeated  insistence that the court was unable  to  help  Douglas
with  that case; he also repeatedly insulted the prosecutor,  his
own attorneys, and the judge.
          Of  course,  no action against an unruly  defendant  is
permissible  except after he has been fully and  fairly  informed
that  his  conduct is wrong and intolerable, and  warned  of  the
possible consequences of continued misbehavior.39  Judge Thompson
repeatedly  and sufficiently warned Douglas that if he  continued
to engage in disruptive behavior he would no longer be allowed in
the  courtroom,  but  his  misbehavior  continued  despite  those
warnings.  Warnings need not be contemporaneous with exclusion to
be sufficient to satisfy Allens requirements.40
          Douglas  appears  to concede that his behavior  at  the
pretrial   hearings  justified  his  initial  removal  from   the
courtroom  on  the  first day of trial.   But  even  absent  that
concession,  his behavior was sufficiently egregious  to  justify
his  initial exclusion.  The competency evaluation indicated that
Douglas was able to control himself but chose not to, and that he
could  be expected to publicly vent his frustration as a form  of
protesting his circumstances.  The trial court did not abuse  its
discretion  when  it excluded Douglas from the courtroom  on  the
first day of trial.
     C.   Whether  It  Was  an  Abuse of  Discretion  To  Require
          Douglas To Testify by Speakerphone
          
          The  Court in Allen stated that [o]nce lost, the  right
to  be  present  can,  of course, be reclaimed  as  soon  as  the
defendant  is  willing to conduct himself consistently  with  the
decorum  and  respect  inherent in  the  concept  of  courts  and
judicial  proceedings.41  We must therefore determine whether  it
was  an abuse of discretion for the trial court to determine that
Douglas was not in fact willing to behave in the courtroom if  he
were  brought  back  to testify live, and to require  Douglas  to
testify by speakerphone.
          We  first address two preliminary matters.  First,  the
court  of appeals noted that Douglas may not have preserved  this
claim of error at trial.42  When Douglas asked to return and  the
trial  court stated that it [could]nt bring Mr. Douglas in  here,
Douglass  attorney replied Im not asking you to.   The  court  of
appeals  nonetheless  chose to reach  the  merits  of  the  issue
because  of the importance of this issue to future cases.43   The
state  does  not  argue  that the issue was  not  preserved.   We
therefore assume it was.
          Second,  Douglas  implicitly  argues  the  trial  court
infringed  not only on his right to be present, but also  on  his
privilege to testify in his own defense.  The trial court offered
Douglas  the  opportunity  to testify  telephonically,  which  he
declined.
          We  apply  the Allen standards to determine  whether  a
defendant may forfeit his right to testify in person, as well  as
his right to be present, by engaging in disruptive conduct.44  It
is  therefore  not necessary for us in this case  to  distinguish
between the right to confront witnesses and the right to testify,
although  we also note that the right invoked may have a  bearing
on   what   measures  least  restrictively  avoid  his  continued
misbehavior.
          Douglas  argues that because he was excluded  from  the
courtroom  as a result of his disruptive behavior, the court  was
required  to allow him to return to the courtroom after he  asked
to  testify in person and promised to behave.  The state responds
that  because  of Douglass actions during the pretrial  hearings,
the   results  of  his  competency  evaluation,  Judge  Thompsons
repeated  warnings, and the numerous opportunities  that  Douglas
was  afforded to demonstrate his composure, the trial  court  was
not required to allow Douglas to return based upon Douglass naked
statement that he would behave.
          1.   Whether  a  trial  court must  credit  a  criminal
               defendants promise to behave
               
          The  court of appeals held that the trial court did not
abuse its discretion by refusing to allow Douglas to reenter  the
courtroom.45  It distinguished between a promise to behave and  a
demonstrated willing[ness] to behave, and held that a trial judge
is not obliged to uncritically accept all promises of future good
behavior.  If the record affirmatively demonstrates good  reasons
for not accepting the defendants promise at face value, the judge
does  not need to keep giving a disruptive defendant the  benefit
of the doubt.46
          Several courts have also held that it was not an  abuse
of discretion to refuse to allow a defendant to reclaim his right
to  be  present or his privilege to testify based solely  on  his
promise  to behave.47  For example, in United States v.  Munn,  a
defendant who was removed from the courtroom at the beginning  of
jury  selection  requested  to return during  that  same  morning
session.48  The court allowed him to return, but not until  trial
resumed for the afternoon, at which point the defendant had  been
absent  approximately one hour and fifteen minutes.49  The  Tenth
Circuit held that the trial court did not abuse its discretion in
declining  to  return Munn to the courtroom until  the  afternoon
session.50  It noted that (1) Munn was able to hear the  progress
of  his  trial  through  a  broadcasting  system;  (2)  Munn  was
advised  .  . . that he would be afforded opportunity  to  confer
with  his  attorney; and (3) Munn was only out of  the  courtroom
something  over an hour before he was returned on his promise  of
good behavior.51  The court stated that
          [Allen  is not] an absolute mandate dictating
          the  return of every defendant who  has  been
          removed  from  the courtroom  simply  on  his
          verbal promise to reform.  Prior conduct  may
          indicate such a  promise is of little  value.
          Certainly some discretion is still left  with
          a trial court to pass upon the sincerity of a
          defendants recantation.[52]
          
          And  in  United States v. Ives, the trial court refused
to  allow the defendant back into the courtroom to testify  after
he was removed several times for disruptive behavior.53  The court
did   not   offer   the  defendant  the  choice   of   testifying
telephonically.54   The United States Court of  Appeals  for  the
Ninth  Circuit  concluded that the trial court  did  not  err  in
concluding  that  the  defendant lost his  right  to  testify  by
continuing  to engage in disruptive behavior after being  warned,
removed, and allowed back in.55
          We  agree  with the Alaska Court of Appeals that  Allen
does not say that a defendant automatically reclaims the right to
be  present  whenever the defendant promises to behave.   Rather,
Allen  says  that the defendant reclaims the right to be  present
when  the defendant is willing to behave.56  We hold, as did  our
court  of  appeals,  that  a  trial  judge  is  not  obliged   to
uncritically accept all promises of future good behavior. If  the
record  affirmatively demonstrates good reasons for not accepting
the defendants promise at face value, the judge does not need  to
keep giving a disruptive defendant the benefit of the doubt.57
          We  also  agree that it would be error to  indefinitely
bar   a  defendant  from  attending  their  trial  or  sentencing
proceedings  based  merely upon their  past  misconduct  and  the
surmise that the disruptive conduct may continue.58  The court of
appeals  correctly recognized that defendants must be allowed  to
reclaim  the  right  to  attend their  trial  by  altering  their
behavior.59
          2.   Whether  it  was  an abuse of discretion  for  the
               trial  court  to  discredit  Douglass  promise  to
               behave
               
          We  next consider whether there was good reason for not
accepting  at face value Douglass promise to behave.   The  state
notes  that  the trial court had temporarily excluded Douglas  on
several  occasions, allowing him to return each  time,  and  that
Douglas  had repeatedly demonstrated his unwillingness to control
himself.   The  state  argues that Douglass behavior  immediately
before  and  after his request to return belied  his  promise  to
behave.   It asserts that just before promising to show [himself]
calmly  Douglas  called  the prosecutor  and  the  court  fucking
moron[s].   And  it contends that after promising that  he  would
behave, Douglas clearly telegraphed his intention to play by  his
own  rules  and relitigate his sexual assault charges by  stating
both that he planned to exhibit proof which my lawyers did not do
and  that  he had everything that proves that [K.I.] is  a  liar.
The  state  concludes that the combination of Douglass  past  and
immediate  behavior was sufficient to support  the  trial  courts
determination that Douglass promise to behave was not credible.
          The  trial  court expressed concern that Douglas  would
not limit his testimony to relevant matters on direct examination
or  meaningfully  answer  the  prosecutors  questions  on  cross-
examination,  and  that  he  would  curs[e]  and  carry[]  on  if
interrupted.   It  predicted that Douglas would  not  answer  the
states  questions  except with invective  and  insults  and  that
Douglass  conduct  would  leave the  jury  hopelessly  prejudiced
against  Douglas.   And it stated that it  did  not  wish  to  be
presented with the possibility of striking Douglass testimony  or
declaring a mistrial.
          We  agree with the state and the court of appeals  that
the  trial  court did not abuse its discretion when it  concluded
that  Douglass  promise to behave was not credible and  therefore
refused to allow Douglas to return to the courtroom to testify.60
Any  determination of credibility will necessarily be based on  a
defendants   past   behavior.    If   previous   misbehavior   is
sufficiently severe and recent to render a promise to behave  not
credible,  Allen does not mandate that a defendant be  given  yet
another opportunity to misbehave, this time in front of the jury.
          The  dissenting opinion does not say how  many  chances
Douglas should have been given and seems to posit a one-bite rule
that  allows every defendant who promises to behave at least  one
opportunity to act out in front of the jury, irrespective of  the
recency  and  severity of pretrial misbehavior  or  the  lack  of
credibility  of  the defendants promise.  The dissenting  opinion
says  that  Douglas  was not given even a single  opportunity  to
appear  before  the  jury  upon his promise  to  behave.61   This
contention  seems  to assume that the trial court  was  bound  to
credit Douglass promise.  It was not.
          Douglas  was  disruptive and disrespectful during  both
the final status and pretrial evidentiary hearings on the eve  of
trial, and he continued to misbehave immediately before and after
Judge Thompson denied his request to return.  He also insisted at
those  hearings that he intended to relitigate the  first  trials
assault charges and K.I.s credibility.  Given Douglass pattern of
misbehavior and insistence on attempting to offer irrelevant  and
inadmissible evidence, Judge Thompson could permissibly find that
Douglass promise to behave was not credible.
          We  assume  the trial court must inform a defendant  he
can  return  to  court  if  he behaves.62   But  any  failure  to
explicitly  so  advise  Douglas during the  trial  or  the  final
pretrial hearings did not prevent Douglas from asking that he  be
returned  to  the  courtroom.   He  vigorously  demanded  to   be
returned.
          We also assume a trial judge considering such a request
must  give  de  novo  consideration  to  the  defendants  current
promises or contentions, and may not simply decline to reconsider
an  earlier exclusion order.63  But this does not mean the  trial
court must consider the current promises or representations in  a
contextual vacuum.  The court here justifiably took into  account
what Douglas had long been saying; there was no sign Douglas  had
mellowed  and would behave even if thwarted on direct or provoked
on  cross,  and there was no evidence that Douglas  had  in  fact
changed his tune and that his promise to behave was credible.
          There  was ample evidence, personally witnessed by  the
trial  court, that permitted the trial court to make  a  reasoned
decision  that Douglas was not in fact willing or able to  behave
himself  while  testifying.   As the state  argues,  Douglas  had
reacted badly in the past to being told that he could not discuss
certain  matters  pertaining to the  sexual  assault  case:  when
Douglas was asked to be quiet or not to use abusive names such as
vile  pig-face  man  and  fat  ass to  refer  to  others  in  the
courtroom,  he  responded with angry, uncontrolled outbursts  and
was wholly undeterred by any form of warning.
          We  also  agree  with the state that Douglas  had  been
temporarily  excluded on several occasions, and had  demonstrated
an  unwillingness to control himself when he was returned to  the
courtroom.   Judge  Thompsons willingness to allow  Douglas  back
into the courtroom on these occasions implies that Judge Thompson
did  not  remove  Douglas because he was personally  offended  by
Douglass  behavior.  Rather, it gives credence to Judge Thompsons
explanation  that he excluded Douglas from the trial  because  of
the  likelihood  that Douglas would disrupt the  proceedings  and
prejudice himself.
          The  state  and  court of appeals correctly  note  that
Douglass  own attorney was convinced Douglas would be  unable  to
behave   if   cross-examined  in  a  way  that  made   him   feel
uncomfortable or admonished by the judge to confine  his  remarks
to pertinent subjects and admissible evidence.64  Indeed, Douglas
himself  on more than one occasion stated to Judge Thompson  that
he could not control himself.  As the court of appeals noted:
          On  several occasions, when Judge Thompson or
          Douglass own attorney admonished him to  keep
          quiet   and  stop  giving  speeches,  Douglas
          replied  that  he  could  not  do  so.    For
          instance, at the March 2nd pre-trial hearing,
          Douglas  aimed  invective at the  prosecutor.
          When  Judge  Thompson told Douglas  to  stop,
          Douglas  replied that it was impossible   and
          he  then accused the prosecutor of subverting
          justice:
          
               The Court: Mr. Douglas, youre going
               to have to control yourself.
               
               Douglas: I cant.  This guy stole my
               evidence. He . . .
               
               . . . .
               
          A    similar    colloquy     i.e.,    another
          protestation   by   Douglas   that   it   was
          impossible  for  him to remain  silent   took
          place at the motion hearing on June 14th:
          
               Defense   Counsel:   Listen,    you
               (indiscernible         simultaneous
               speech).
               
               Douglas:  Excuse me.  I  cant  take
               this.   He  [ i.e., the prosecutor]
               is a liar.
               
               Defense  Counsel: You need to  just
               sit and keep quiet.
               
               The Court: Try to take . . .
               
               Douglas: Pig-eyed liar.  Hes  going
               to  hell. . . . [To the prosecutor]
               Youre  going  to be  swimming  with
               [K.I.]  in  the lake of  fire,  you
               fucking  fat  pig.   Thats  what  I
               meant   by   going  swimming,   you
               pig-faced bastard.
               
               The   Court:  Well.  Let  me   note
               that  .  . . one reason I  had  Mr.
               Douglas brought [to the courthouse]
               today,  instead of  doing  this  by
               phone, was just to see if there had
               been any . . .
               
               Douglas: Well, I just cant sit here
               and listen to lies, Your Honor.[65]
               
          Finally,   we  agree  with  the  state  that   Douglass
contemporaneous  behavior  on  September  1,  2004   calling  the
prosecutor and judge fucking moron[s] and insisting on discussing
evidence  that was relevant only to his assault case  belied  his
promise to behave.
          3.   The danger the trial court might have to declare a
               mistrial
               
          We  assume  that  the court of appeals was  correct  in
supposing  that  Douglass  promise  to  behave  might  have  been
sufficient  to warrant his return to the courtroom  if  the  sole
danger  to  the orderliness of the proceedings had been  Douglass
history  of physically assaultive conduct.66  Courtroom measures,
such  as  inconspicuous restraints or physical separation,  might
have  fully  ameliorated that risk.   But that was not  the  only
risk  he  posed;  the trial court was also justifiably  concerned
about  the  prejudicial  impact on the jury  of  Douglass  verbal
behavior,  and  also  the danger the trial court  might  have  to
declare a mistrial.
          Many  courts  have held that misconduct  or  disruptive
behavior  on  the  part of a defendant during  the  course  of  a
criminal  trial  will not establish grounds for his  obtaining  a
mistrial.67    And   both   trial  and   appellate   courts   are
understandably reluctant to reward a misbehaving defendant with a
self-inflicted  mistrial.   But  we  have  held  that  there  are
instances of serious misconduct on the part of an accused . . . ,
which  make  permissible  both the granting  of  a  mistrial  and
reprosecution,68 and we assume that Judge Thompson was  aware  of
that  holding.   And some courts have granted  mistrials  on  the
basis of prejudice stemming from a defendants own misconduct.69
          Although  we  would  not  in  most  cases  consider   a
defendants  own misconduct grounds for a mistrial, we decline  to
hold  categorically that a defendant altogether waives his  right
to  a fair trial if he prejudices himself by misbehaving in front
of  the  jury.   A  trial  court may feel obligated  to  grant  a
mistrial, either on the defendants motion or sua sponte, even  if
it  is the defendants own misbehavior that potentially prejudices
the jury.
          The  trial  court therefore expressed a  valid  concern
that it might have to declare a mistrial if it allowed Douglas to
reenter  the  courtroom to testify.70  Even  Douglass  own  trial
attorney implied that he believed Douglas was likely to misbehave
in  front  of  the jury if Douglas was permitted to  reenter  the
courtroom.   If  that occurred, the trial court would  have  been
faced with the possibility of having to decide whether to declare
a mistrial.
          Had  Douglas misbehaved in front of the jury  and  then
moved  for  a mistrial, the trial court would have had to  decide
whether  to grant or deny the motion.  Either granting or denying
such  a  motion  would  have  burdened jurors,  defense  counsel,
prosecutors,  and the court system.  Granting would have  allowed
Douglas,  by virtue of his own misbehavior, to delay the  verdict
and  impose  the  cost  of reprosecution on  the  entire  justice
system.   Denying  would have required review  by  the  court  of
appeals,  at  least, imposing additional burdens on  the  justice
system  and  perhaps  requiring a  retrial  if  the  denial  were
reversed on review.
          Even  if  Douglas would not have moved for a  mistrial,
the  trial court would have been in a no-less-difficult position.
A  trial  court may only grant a mistrial sua sponte for manifest
necessity.71  Once jeopardy has attached  after the jury has been
sworn  a defendant may not be retried for the same offense unless
he  has  consented to a mistrial or there was manifest  necessity
for  granting  a  mistrial.72   The manifest  necessity  standard
requires a high degree of necessity such that the ends of  public
justice would not be served by a continuation of the proceedings.73
          If the trial court were to fail to grant a mistrial sua
sponte,  a  defendant might appeal the failure on the ground  his
constitutional  right  to a fair trial  was  denied,  or  request
postconviction relief on the ground his attorney was  ineffective
for failing to move for a mistrial.74  Litigation of either issue,
whatever  the  outcome, would cause further  delay  and  increase
expense to the justice system.
          A  trial  court  faced  with the  difficult  choice  of
granting  or denying a mistrial sua sponte might well  grant  the
mistrial,  choosing to strike the balance in favor of  protecting
the  defendants right to a fair trial.  But if an appellate court
were  to  hold that manifest necessity did not exist,  the  state
would  be unable to reprosecute the defendant.75  By misbehaving,
the  defendant  could  not only delay the proceedings  and  waste
resources,  but might even avoid reprosecution.   We  decline  to
encourage such a result.
          These  concerns confirm a trial courts need  for  broad
discretion  in  determining how best to avoid  a  mistrial  while
          protecting the rights of the misbehaving defendant to the extent
possible.  Allowing a defendant repeated opportunities to reclaim
his right to be present or his right to testify may be desirable,
but  it  is  not categorically required by Allen.  Nor  does  the
Supreme  Court  categorically require a trial  court  to  give  a
defendant  who  has  misbehaved  egregiously  outside  the  jurys
presence  an  opportunity to misbehave in front of  the  jury  at
least once before being permanently removed.
          4.             The  trial  courts  efforts  to  protect
                         Douglass constitutional rights
                         
          We  also think it significant that the trial court  did
not  altogether prevent Douglas from testifying.  The  dissenting
opinion  correctly  notes  our theoretical  preference  for  live
testimony  when  possible,  but it underestimates  the  potential
prejudice  and  disruption that would result from  in-person,  as
opposed to telephonic, misbehavior.76  Testifying by speakerphone
would  have  allowed  Douglas to convey his version  of  relevant
facts,  and  would  have allowed the court to  carefully  monitor
Douglass  testimony and turn off outbursts to avoid prejudice  or
until decorum could be restored.  In contrast, live misconduct in
the  jurys  presence  could have been stopped  only  by  removing
Douglas  from  the  jurys  presence or  removing  the  jury  from
Douglass  presence.  Either of those remedies would have  allowed
Douglas  to continue to misbehave in the jurys immediate presence
for  some  minutes before he, or the jury, could be removed  from
the   courtroom.   Having  a  disruptive  defendant  testify   by
speakerphone    particularly  if  the  court  imposes   a   brief
electronic  delay so it can interrupt the testimony  in  time  to
prevent   the  jury  from  hearing  irrelevant,  disruptive,   or
prejudicial testimony  would drastically reduce any prejudice and
disruption resulting from misbehavior.
          But  Douglas declined to take advantage of  the  courts
willingness  to let him testify by speakerphone.  The opportunity
to  testify  by speakerphone and the courts continued willingness
to  allow  Douglas to address (and abuse) the court  outside  the
jurys presence also helps persuade us that Judge Thompson did not
act  prematurely or precipitously for any offense to  the  courts
personal  sensibilities.  Had Douglas made a credible promise  to
behave,  the record convinces us that the trial court would  have
allowed Douglas to testify in person.
          Under different circumstances we might find that it was
an  abuse of discretion to refuse to allow a defendant back  into
the  courtroom  to  testify.   But  here  Douglas  continued   to
misbehave in court even on the day before trial and on the  first
day  of  trial,  and Judge Thompson found that  Douglas  was  not
willing  to behave.  If a defendants misbehavior were limited  to
the  more  distant past, it might be sufficiently attenuated  for
Allen to mandate that he be allowed another chance to reclaim his
right  to  be  present.   Similarly,  we  might  find  abuse   of
discretion  if a recently misbehaving defendant demonstrated   by
his  own behavior or the representations of a third person,  such
as  his  attorney  a credible change of heart and willingness  to
behave.  In that situation it might be unreasonable for the trial
          court to rely even on a defendants recent past behavior to
determine that his promise was not credible.  But that is not the
situation  here.  Nothing in Douglass words or in his  recent  or
past  conduct demonstrates that it was an abuse of discretion  to
decline to return him to the courtroom one more time.
          We  commend  Judge  Thompson for his handling  of  this
case.  We are impressed that during a number of hearings over  an
extended  period  of time Judge Thompson, in the  Supreme  Courts
words, at all times conducted himself with that dignity, decorum,
and  patience that befit a judge, even in the face of scurrilous,
abusive  language  and conduct.77  He had many  opportunities  to
observe  Douglass  behavior and repeatedly  attempted  to  cajole
Douglas  into  behaving so that Douglas could be present  in  the
courtroom during his trial.  Judge Thompson excluded Douglas only
as a last resort and made the speakerphone remedy available.  The
fact that Judge Thompson tried so hard to avoid excluding Douglas
confirms that Douglas indeed carried the keys to the courtroom in
his  pocket  but  obstinately  refused  to  use  them,  and  that
exclusion was not only permissible but likely unavoidable.
IV.  CONCLUSION
          The   court  of  appeals  opinion  affirming   Douglass
conviction is AFFIRMED.
FABE,   Chief  Justice,  with  whom  MATTHEWS,  Justice,   joins,
dissenting.
          Today  the court affirms Ty Douglass conviction despite
the  fact  that  he was barred from attending his own  trial  and
denied  the  opportunity to testify in person on his own  behalf.
Although it is certainly true that Douglas had been disruptive in
the  courtroom in the past, the trial court failed to give him  a
single  opportunity to honor his promise to behave  appropriately
in  front of the jury.  Because the law demands that more respect
be  given  to  a  defendants right to attend his  trial,  and  in
particular  to  give  live testimony if he so  chooses,  I  would
reverse Douglass conviction.
          As  the  court recognizes, a defendants right to attend
his  trial  is rooted in the right to confront adverse  witnesses
and  the right to due process of law under both the United States
and  Alaska  constitutions.1  The Supreme  Court  of  the  United
States  has  said that the accuseds right to be  present  in  the
courtroom at every stage of his trial is [o]ne of the most  basic
of the rights guaranteed by the Confrontation Clause.2  In recent
years  the  Supreme Court has steadfastly refused  to  relax  the
requirements  of  the  Confrontation Clause  to  accommodate  the
necessities  of trial and the adversary process,3 stressing  that
there is something deep in human nature that regards face-to-face
confrontation between accused and accuser as essential to a  fair
trial  in  a criminal prosecution.4  And we ourselves have  noted
that  the defendants presence at all stages of the trial  .  .  .
promotes  the  perception and reality of fairness  in  the  trial
process.5   Because  such an important and  deeply  rooted  right
should  not  be  abridged lightly, any limitations  placed  on  a
criminal defendants ability to attend his trial in person  should
be  no  more  restrictive  than is necessary  to  accomplish  the
purpose they serve.6
          In  Illinois  v. Allen the Supreme Court grappled  with
the  question  of  what  a  trial judge  can  do  to  reduce  the
disruption  caused  by an unruly defendant like  Douglas  without
running  afoul  of his constitutional right to be present  during
his trial.7   As the court acknowledges today, Allen sets minimal
standards that we must apply whether the defendant relies on  the
federal or state constitution.8  The treatment of Douglas  failed
to meet the minimal federal standards set by Allen.
          Under Allen, one constitutionally permissible method of
controlling  a disruptive defendant is to exclude  him  from  the
courtroom  until he promises to conduct himself  properly.9   The
Allen Court stressed that the right to be present can, of course,
be  reclaimed  as  soon as the defendant is  willing  to  conduct
himself consistently with the decorum and respect inherent in the
concept  of  courts  and  judicial  proceedings.10   After  being
removed once, the defendant in Allen was permitted to reenter the
courtroom upon his request to do so and a warning that  he  would
be  removed again if he did not behave.11  After acting  out  and
being  removed  a  second time, the trial  judge  reiterated  his
promise  to Allen that he could return to the courtroom  whenever
he  agreed  to conduct himself properly and once Allen gave  some
assurances  of  proper  conduct he was permitted  to  be  present
          throughout the remainder of the trial.12  The Allen Court
favorably noted the fact that the trial judge constantly informed
[Allen] that he could return to the trial when he would agree  to
conduct himself in an orderly manner.13
          Excluding  an  unruly defendant from the  courtroom  as
described   in  Allen  is  analogous  to  holding  an   obstinate
individual in civil contempt of court.  As is the case with civil
contempt,  the purpose of the exclusion is remedial, rather  than
punitive   the defendant is excluded not to punish  him  for  his
outbursts, but to ensure an orderly trial.14  And just as a civil
contempt  defendant carries the keys to his or  her  imprisonment
(or punishment) in his or her own pocket,15 Allen requires that a
defendant  excluded from his trial be given the means  to  redeem
himself  and  regain his right to be present  in  the  courtroom.
Though  Douglass pretrial antics were sufficiently  inappropriate
to  justify his initial exclusion, he was never given the keys to
his metaphorical cell.
          After  being  barred  from the  courtroom  due  to  his
misbehavior, Douglas asked to be allowed back in and promised  to
show  [him]self  calmly.  But the superior court  did  not  allow
Douglas even a single opportunity to reenter, and once the  trial
began  it  did  not inform Douglas of anything  he  could  do  to
reclaim  his  right to be present.  In fact, the  superior  court
repeatedly and unequivocally expressed its unwillingness to  even
consider  allowing Douglas into the courtroom: I  dont  have  any
intention  of bringing Mr. Douglas into the courtroom  while  the
jury is in the courtroom, [i]t just aint going to happen, Im  not
going  to  bring  him in here, and I cant bring  Mr.  Douglas  in
here.16
          The  court recognizes that under Allen defendants  must
be allowed to reclaim the right to attend their trial by altering
their behavior17 and that it would be error to indefinitely bar a
defendant  from  attending their trial or sentencing  proceedings
based merely upon their past misconduct and the surmise that  the
disruptive  conduct  may continue.18  Yet the  court  nonetheless
affirms  Douglass  conviction  despite  the  fact  that  he   was
indefinitely  barred  from  his trial  without  ever  once  being
allowed  to reclaim the right to attend.  The court reaches  this
result  by  drawing a fine distinction between  a  defendant  who
promises  to  behave  and a defendant who is willing  to  behave,
concluding  that  although Douglas promised  to  conduct  himself
properly, he was not truly willing to do so.19  I do not  believe
that  Allen  allows such a fine distinction to be  drawn   in  my
view,  Allen  requires  a trial court to at  least  provisionally
honor  a defendants promise to behave even when his behavior  has
been as egregious as Douglass.
          But  even  if  Allen  does allow some  promises  to  be
disregarded,  Douglass promise to behave demonstrated  sufficient
self-awareness and understanding of the importance  of  making  a
good  impression on the jury (if not on the judge and  attorneys)
to  merit at least a single chance to regain his right to  attend
his  trial.   Although,  as highlighted  by  the  court,  Douglas
expressed  an unwillingness to behave during pretrial proceedings
in  the  absence of the jury, he nonetheless unequivocally stated
          his  intent to remain calm in the presence of the jury,
recognizing  that the jury would be deciding his  fate.   Douglas
pointed  out to the trial court that he didnt act up in front  of
the  jury  [during his prior trial] until after the  verdict  and
that he sat there through the whole trial.  He explained, I didnt
want  to mess up in front of the [prior] jury and I dont want  to
mess up in front of this jury, Im not going to sabotage myself in
front  of  the  jury, [t]heres no reason for me to get  upset  in
front  of that jury, and I dont want to make those people  upset.
He  also showed self-awareness regarding his misbehavior when  he
stated  that although he could show [him]self calmly to the  jury
during  the trial, the court shouldnt bring [him] back  in  there
for  the reading of the verdict because if found guilty he  would
be upset and might act out.
          Several  jurisdictions have held  that  a  trial  court
abused its discretion in refusing to allow a defendant to reenter
upon a request to return and promise to behave.  For example,  in
Goston  v.  State, the Arkansas Supreme Court held that  although
the  trial  courts knowledge of a defendants past behavior  is  a
relevant  consideration,20 the trial court abused its  discretion
because Goston was never afforded any opportunity to reclaim  his
right of confrontation despite requests to return and promises to
behave.21  And in State v. Aceto, the Montana Supreme Court  held
that  the trial court erred when it did not give the defendant  a
chance  to  return  to  the courtroom when  he  apologized  after
repeated bad behavior.22
          Some jurisdictions have gone even further, interpreting
Allen to require a trial court to affirmatively offer a defendant
the  opportunity  to  reclaim his right  to  be  present.23   The
American   Bar   Associations  Standards  for  Criminal   Justice
similarly  recommend that a removed defendant should be  afforded
an  opportunity  to  hear  the proceedings  and,  at  appropriate
intervals, be offered on the record an opportunity to  return  to
the courtroom upon assurance of good behavior.24
          Although  several decisions have upheld  the  permanent
exclusion  of a disruptive defendant from his trial, in  some  of
these cases the defendant failed to  request to return or promise
to  behave,25 and in others, the defendant was allowed to  return
multiple  times upon repeated promises to behave, before  finally
being excluded permanently.26  Douglass case does not require  us
to  decide precisely how many chances a defendant must  be  given
before  he is barred from his trial indefinitely because  Douglas
was not given even a single opportunity to appear before the jury
upon his promise to behave.
          Even  if  it were possible to justify excluding Douglas
from  the  bulk  of his trial, it is particularly troubling  that
Douglas  was not given a chance to testify in person on  his  own
behalf.   In a context much less weighty than a felony  trial   a
simple drivers license revocation hearing  we have recognized the
special   importance   of   live,  as  opposed   to   telephonic,
testimony.27  We noted that the potential for empathy and nuanced
understanding  is much greater in person-to-person communications
than  in any of the various forms of telecommunicating, and  thus
that  when a party is denied an in-person hearing before a  trier
          of fact, there is a risk that the party will be less able to
convey the message that his story is the truth.28
          Concerns  about the difficulty of controlling  Douglass
testimony do not serve as a persuasive rationale for denying  him
the  right  to  testify in person given that he was  offered  the
opportunity  to  testify by speaker phone and his  speaker  phone
testimony  could likewise have been uncontrollable.   Flipping  a
switch  to  suppress  acting out on a speaker  phone  seems  only
marginally  less prejudicial than calling a recess, excusing  the
jury, and removing the defendant from the courtroom.  And to  the
extent  that calling a recess would be more prejudicial,  such  a
problem would have been invited by the defendant.
          The  court overstates the risk of mistrial raised by  a
possible outburst by Douglas in front of the jury, whether during
his own testimony or at another stage in the proceedings.  As the
court  recognizes, a defendants own misconduct is  generally  not
considered  grounds for a mistrial  to hold otherwise would  give
many   defendants  a  strong  incentive  to  misbehave.29   Thus,
provided  a  defendant  has  been sufficiently  warned  that  any
disruption  he voluntarily causes will not result in a  mistrial,
the  risk  of prejudicing himself in front of the jury should  be
his  to  take if he so chooses.30  We should not countenance  the
total  denial of a defendants right to attend his trial and  give
in-person  testimony in the name of preserving other  fair  trial
rights of the defendant.  The choice is for the defendant.
          Because, by excluding Douglas from his entire trial and
refusing  to let him testify in person, the trial court  violated
the  confrontation and due process clauses of the  United  States
and Alaska constitutions, I respectfully dissent.
_______________________________
     1     Douglas  v.  State (Douglas I), 151 P.3d  495,  497-98
(Alaska App. 2006).

     2    AS 11.56.540(a)(1).

     3    AS 11.56.750(a).

     4    AS 11.31.100(a); AS 11.56.750(a).

     5    Douglas I, 151 P.3d at 495.

     6     Douglas v. State (Douglas II), 166 P.3d 61, 65 (Alaska
App. 2007).

     7    Id. at 65.

     8    Id.

     9     Douglas  I,  151 P.3d at 497, 507.   Douglas  did  not
appeal  Judge Weekss decision to restrain him in that case.   Id.
at 497.

     10    Douglas II, 166 P.3d at 65-83.

     11    Id. at 67-76.

     12    Douglass first two attorneys withdrew because they had
conflicts of interest.

     13     The  court  of  appeals  opinion  sets  out  verbatim
exchanges  between  Douglas  and the  court  on  at  least  eight
different  occasions, beginning with an exchange on November  20,
2003.  Douglas II, 166 P.3d at 65-80.

     14    Id. at 65.

     15    Id. at 81, 83.  Douglass appeal to the court of appeals
included additional issues, id. at 83-90, which his petition  for
hearing explicitly waives.

     16     Illinois v. Allen, 397 U.S. 337 (1970) (holding  that
trial  court  acted  within its discretion by  removing  criminal
defendant  from  court  during  trial,  after  defendant  behaved
disruptively).

     17    Id. at 343, 347.

          The  great  majority of jurisdictions  considering  the
standard  of  review  for  trial court  decisions  to  remove  or
restrain defendants under the test enunciated in Allen review for
abuse  of  discretion.  Spain v. Rushen, 883 F.2d 712,  716,  725
(9th  Cir. 1989); United States v. Ives, 504 F.2d 935,  942  (9th
Cir. 1974), vacated on grounds not relevant here sub nom. Ives v.
United States, 421 U.S. 944 (1975), reinstated in relevant  part,
547  F.2d  1100 (9th Cir. 1976); United States v. Munn, 507  F.2d
563,  568 (10th Cir. 1974); Goston v. State, 939 S.W.2d 818,  819
(Ark.  1997); State v. Jones, 916 A.2d 17, 35 (Conn. 2007); State
v.  Gillam,  629  N.W.2d 440, 450, 452 (Minn.  2001);  People  v.
Powell,  740 N.Y.S.2d 859, 859 (N.Y. App. Div. 2002);  Dotson  v.
State, 785 S.W.2d 848, 853-54 (Tex. App. 1990); State v. Chapple,
36 P.3d 1025, 1030 (Wash. 2001) (en banc).  Only one jurisdiction
seems to give de novo review.  State v. Aceto, 100 P.3d 629,  632
(Mont. 2004).

     18    Rae v. State, 884 P.2d 163 (Alaska App. 1994) (holding
that  trial  court  abused its discretion in  ordering  defendant
bound and gagged during trial without holding full hearing).

     19    Id. at 165.

     20     Allen,  397  U.S. at 338; Ives, 504 F.2d  at  941-42;
Chavez v. Pulley, 623 F. Supp. 672, 681-82 (E.D. Cal. 1985).

     21    Shea v. State, Dept of Admin., Div. of Ret. & Benefits,
204  P.3d 1023, 1026 (Alaska 2009) (internal quotation marks  and
alteration  omitted) (quoting Dobrova v. State, Dept of  Revenue,
Child Support Servs. Div., 171 P.3d 152, 156 (Alaska 2007)).

     22     State  v.  Smart, 202 P.3d 1130, 1134  (Alaska  2009)
(citing Grinols v. State, 74 P.3d 889, 891 (Alaska 2003); Todd v.
State, 917 P.2d 674, 677 (Alaska 1996)).

     23     Grinols, 74 P.3d at 891 (citing Guin v. Ha, 591  P.2d
1281, 1284 n.6 (Alaska 1979)).

     24     U.S.  Const. amend. VI; Alaska Const.  art.  I,   XI;
Allen,  397  U.S.  at 338 (One of the most basic  of  the  rights
guaranteed by the Confrontation Clause is the accuseds  right  to
be  present in the courtroom at every stage of his trial. (citing
Lewis v. United States, 146 U.S. 370 (1982))).

     25     U.S.  Const. amend. XIV; Alaska Const. art. I,   VII;
United  States v. Gagnon, 470 U.S. 522, 526 (1985) (stating  that
the  right to be present at trial is protected by the Due Process
Clause  in  some situations where the defendant is  not  actually
confronting witnesses or evidence against him); Wamser v.  State,
652 P.2d 98, 101 n.10 (Alaska 1982) ([I]n Alaska the right to  be
present  is  founded on the state constitutional  rights  of  the
accused to due process and to confront the witnesses against him.
(citing Dixon v. State, 605 P.2d 882, 884 (Alaska 1980); State v.
Hannagan, 559 P.2d 1059, 1063 (Alaska 1977))).

     26    Allen, 397 U.S. at 343.

     27    Id. at 343-44.

     28     Alaska  R.  Crim.  P. 38(a) (The defendant  shall  be
present  .  .  .  at every stage of the trial, . .  .  except  as
otherwise provided in this rule.).

     29     Douglas  II, 166 P.3d 61, 65 (Alaska App. 2007)  (The
question  is  whether Judge Thompson abused his discretion  under
Allen  and  Rae  [v.  State,  884 P.2d  163  (Alaska  App.  1994)
(applying Allen to state constitutional claims)] . . . .).

     30    Allen, 397 U.S. at 339.

     31    Id. at 340.

     32    Id.

     33    Id. at 340-41.

     34    United States v. Nunez, 877 F.2d 1475, 1476 (10th Cir.
1989).

     35    Id. at 1476, 1478.

     36    Chavez v. Pulley, 623 F. Supp. 672, 676, 681 (E.D. Cal.
1985).

     37     State v. Chapple, 36 P.3d 1025, 1031-32 (Wash.  2001)
(en banc).

     38    Douglas II, 166 P.3d 61, 65 (Alaska App. 2007).

     39     Illinois v. Allen, 397 U.S. 337, 350 (1970) (Brennan,
J., concurring).

     40     See,  e.g., United States v. Munn, 507 F.2d 563,  567
(10th     Cir.     1974)     (holding     that     Allen     does
not  . . . require . . . a contemporaneous warning, and a warning
that  occurred  [s]everal weeks before trial  was  sufficient  to
satisfy Allen).

     41    Allen, 397 U.S. at 343.

     42    Douglas II, 166 P.3d 61, 80 (Alaska App. 2007).

     43    Id. at 80.

     44     See United States v. Ives, 504 F.2d 935, 941-42  (9th
Cir.  1974)  (adopting  Allen standards for  determining  whether
defendant, as result of disruptive conduct, has waived  privilege
to  testify), vacated on grounds not relevant here sub nom.  Ives
v.  United  States, 421 U.S. 944 (1975), reinstated  in  relevant
part,  547  F.2d 1100 (9th Cir. 1976); Chavez v. Pulley,  623  F.
Supp.  672, 681-82 (E.D. Cal. 1985) (applying Allen standards  to
privilege to testify).

     45    Douglas II, 166 P.3d at 83.

     46    Id. at 81.

     47    United States v. Munn, 507 F.2d 563, 567-68 (10th Cir.
1974); State v. Jones, 916 A.2d 17, 35 (Conn. 2007) (holding that
trial  court  did  not  abuse discretion by  refusing  defendants
request to return after head marshal reported that defendant  was
behaving   in  confrontational  manner  with  marshals,  appeared
agitated, and was unapologetic about previous behavior); see also
United  States v. Nunez, 877 F.2d 1475, 1476-78 (10th Cir. 1989).
But  see  Goston  v.  State, 939 S.W.2d 818, 820-22  (Ark.  1997)
(holding  that  it  was abuse of discretion for  trial  court  to
refuse to allow defendant to reclaim his right to be present upon
his request to return and promise to behave).

     48     United  States v. Munn, 507 F.2d 563, 567 (10th  Cir.
1974).

     49    Id. at 567-68.

     50    Id. at 568.

     51    Id. at 567-68.

     52    Id. at 568.

     53     United States v. Ives, 504 F.2d 935, 943-45 (9th Cir.
1974),  vacated  on grounds not relevant here sub  nom.  Ives  v.
United States, 421 U.S. 944 (1975), reinstated in relevant  part,
547 F.2d 1100 (9th Cir. 1976).

     54    Ives, 504 F.2d at 944-45.

     55    Id. at 946.

     56     Douglas  II,  166  P.3d 61,  81  (Alaska  App.  2007)
(emphasis in original).

     57    Id.

     58    Id. at 80-81.
          
     59    Id. at 81.

     60    Id. at 83.

     61    Slip Op. at 42.

     62    See State v. Strich, 915 A.2d 891, 898-900 (Conn. App.
2007)  (holding  that although court erred in failing  to  inform
defendant  that he could reclaim right to be present,  error  was
harmless).

     63    See Douglas II, 166 P.3d at 80-81.

     64    Id.

     65     Id.  at  82  (alterations and  italics  in  original,
underline added).

     66    Id. at 83.

     67     State  v. Linkous, 355 S.E.2d 410, 413 (W. Va.  1987)
(holding that refusal to grant mistrial after several members  of
jury saw defendant engage in disruptive behavior that resulted in
scuffle with law enforcement officials at trial was not abuse  of
discretion);  see also, e.g., Gordon v. State, 609  N.E.2d  1085,
1087  (Ind.  1993) (holding that defendant was  not  entitled  to
mistrial  on  basis  of  his outburst and subsequent  shackling);
State  v.  Shank,  448 So. 2d 654, 657 (La. 1984)  (holding  that
defendant  who  was  prejudiced because of  his  own  speech  and
conduct,  including admissions of guilt before jury,  threats  to
kill  jury, and attempt to strangle his defense counsel, was  not
entitled to new trial); State v. Solomon, 7 S.W.3d 421, 427  (Mo.
App.   1999)  (holding  that  defendants  forcible  removal  from
courtroom  in  presence  of  jury did  not  warrant  declaring  a
mistrial).

     68    Lewis v. State, 452 P.2d 892, 897 (Alaska 1969).

     69    See, e.g., Braswell v. United States, 200 F.2d 597, 602
(5th  Cir. 1952) (stating that [d]enial of a fair trial is beyond
the  range  of  [permissible]  punishment  for  misbehavior,  and
holding  that  mistrial should have been granted after  defendant
struck marshal in presence of jury).

     70     See,  e.g., United States v. Ives, 504 F.2d 935,  945
(9th  Cir.  1974) (The judge, out of the presence  of  the  jury,
accurately  described the dilemma before him: If  he  refused  to
allow  Ives to testify, his counsel would charge that  the  court
erred  by  denying  him that privilege; if  he  allowed  Ives  to
testify  and  Ives  acted  as the judge believed  he  would,  his
counsel  would  charge that the court erred  by  not  granting  a
mistrial.), vacated on grounds not relevant here sub nom. Ives v.
United States, 421 U.S. 944 (1975), reinstated in relevant  part,
547 F.2d 1100 (9th Cir. 1976).

     71    Koehler v. State, 519 P.2d 442, 448 (Alaska 1974).

     72     Arizona  v.  Washington, 434 U.S.  497,  505  (1978);
Koehler, 519 P.2d at 448.

     73     United States v. Jorn, 400 U.S. 470, 485 (1971);  see
also Muller v. State
478 P.2d 822, 826-27 (Alaska 1971).

     74     See, e.g., Hardwick v. Dugger, 648 So. 2d 100, 104-05
(Fla. 1994) (considering, although ultimately rejecting for  lack
of   prejudice,  postconviction  claim  that  trial  counsel  was
ineffective  for  failing  to move for mistrial  after  emotional
outburst of victims family member).

     75    Koehler, 519 P.2d at 448.
          
     76    Slip Op. at 42.

     77    Illinois v. Allen, 397 U.S. 337, 347 (1970).

1    Slip Op. at 14 (footnotes omitted).

     2    Illinois v. Allen, 397 U.S. 337, 338 (1970).

     3    Melendez-Diaz v. Massachusetts, ___ S. Ct. ___, No. 07-
591,  2009 WL 1789468, at *12 (June 25, 2009) (internal quotation
marks  omitted) (holding that Confrontation Clause bars admission
of  certificates  of  drug analysis sworn by  analysts  at  state
laboratory without requiring their in-court testimony).

     4     Coy  v.  Iowa,  487 U.S. 1012, 1017  (1988)  (internal
quotation  marks  omitted)  (holding  that  placement  of  screen
between  defendant  and  child  sexual  assault  victims   during
testimony  against  defendant violated  defendants  Confrontation
Clause  rights); see also Giles v. California, 128 S.  Ct.  2678,
2692-93 (2008) (holding that California Supreme Courts theory  of
forfeiture  by  wrongdoing was not an exception to  confrontation
requirement and noting that the guarantee of confrontation is  no
guarantee  at all if it is subject to whatever exceptions  courts
from  time to time consider fair ); Davis v. Washington, 547 U.S.
813,  821-22  (2006)  (holding  that  Confrontation  Clause  bars
admission of a statement taken by a police officer in the  course
of  interrogation where the primary purpose of the  interrogation
is  to  establish  or prove past events potentially  relevant  to
later  criminal prosecution and the witness does  not  appear  at
trial);  Crawford  v.  Washington,  541  U.S.  36,  53-54  (2004)
(holding  that Confrontation Clause bars admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable  to  testify,  and the  defendant  had  had  a  prior
opportunity for cross-examination).

     5    Raphael v. State, 994 P.2d 1004, 1012 (Alaska 2000).

     6     Cf.  State v. Murtagh, 169 P.3d 602, 608, 610  (Alaska
2007)  (explaining  that [s]tate practices,  including  statutes,
that  interfere with fair trial rights do not pass constitutional
muster merely because they are minimally rational, but rather  we
will  consider  not  only the relative strength  of  the  purpose
underlying  the statute but also the likelihood that the  statute
will  achieve its purpose and whether the purpose can be achieved
in another way that does not impede fair trial rights).

     7    397 U.S. at 342-47.

     8    Slip Op. at 16.

     9    397 U.S. at 343-44.

     10   Id. at 343.

     11   Id. at 340.

12   Id. at 341.

     13   Id. at 346 (emphasis added).

     14    See Stadler v. State, 813 P.2d 270, 272 (Alaska  1991)
(If  it is for civil contempt the punishment is remedial . . .  .
But if it is for criminal contempt the sentence is punitive . . .
.).

     15   Id.; see also Diggs v. Diggs, 663 P.2d 950, 951 (Alaska
1983)  ([A]ny sanction which is imposed as a result of the  civil
contempt proceeding must afford a continuous opportunity  to  the
defendant to purge the contempt.).

     16    The superior court also indicated a predisposition  to
exclude Douglas prior to trial, warning Douglas: Im not nearly as
indulgent  as Judge Weeks and if you were to get about two  words
out of line with me, I think youd probably be listening in on the
speakerphone  and  I  dont think . . .  the  microphone  will  be
working either.

     17   Slip Op. at 23 (internal quotation marks omitted).

     18   Id. (internal quotation marks omitted).

     19   Id. at 22-24.

20   939 S.W.2d 818, 820 (Ark. 1997).

     21   Id. at 821-22.

     22   100 P.3d 629, 630-31, 638-39 (Mont. 2004).

     23    Chavez v. Pulley, 623 F. Supp. 672, 681-82 (E.D.  Cal.
1985) ([A] trial judge who has removed a criminal defendant  from
the  courtroom because of his disruptive behavior must offer  the
defendant  the opportunity to reclaim the right of  presence  and
the privilege to testify.); State v. Strich, 915 A.2d 891, 899-90
(Conn. App. 2007) (holding that the trial court erred because  it
never  informed  the defendant that, with proper  assurances,  he
could reclaim his right to be present for the remaining courtroom
proceedings but that the error was harmless).

     24    ABA  Standards for Criminal Justice: Special Functions
of the Trial Judge, Standard 6-3.8 (3d ed. 2000).

     25    People  v.  Pearson, 287 N.E.2d 715, 719  (Ill.  1972)
([T]he defendant did not ask to be allowed to resume his place in
the  courtroom  and,  of course, he did not  promise  to  conduct
himself  properly  following the second disturbance.);  State  v.
Sahakian, 886 S.W.2d 178, 181 (Mo. App. 1994) (stating that after
removal [d]efendant did not express any desire to participate  in
the  three day trial); Dotson v. State, 785 S.W.2d 848, 854 (Tex.
App.  1990)  (holding no abuse of discretion  where  trial  judge
removed  defendant from courtroom, defendant did not  request  to
return,  and  trial  judge  did not subsequently  inquire  as  to
whether defendant would behave if permitted to return); State  v.
Chapple, 36 P.3d 1025, 1033 (Wash. 2001) (en banc) (stating  that
lower  courts  have  interpreted [the right  to  reclamation]  to
require  varying  degrees  of  trial  court  involvement  in  the
reclamation and holding that using defense counsel as  go-between
was adequate to give defendant opportunity to reclaim right).

     26    United  States v. Nunez, 877 F.2d 1475, 1476-78  (10th
Cir.  1989)  (holding that it was not error to  refuse  to  allow
defendant  to  return for third time, after  having  removed  him
twice  and  excused him once, allowing him to return  twice  upon
promises to behave); People v. Medina, 906 P.2d 2, 26 (Cal. 1995)
(rejecting defendants argument that trial court erred in refusing
to allow defendant to return for sixth time, after having removed
him six times, allowing him to return five times upon promises to
behave);   State v. Gillam, 629 N.W.2d 440, 451-52  (Minn.  2001)
(holding  that it was not abuse of discretion to refuse to  allow
defendant  to  return for third time, after  having  removed  him
three  times,  allowing  him to return  twice  upon  promises  to
behave).

     27   Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1136-37 (Alaska 2001).

     28   Id. at 1137.

     29   Slip Op. at 28-29.

     30    The right to testify is personal to the defendant, and
the  defendant  may exercise it even if doing so is  against  his
counsels wishes and against his own best interests.  See  LaVigne
v.  State, 812 P.2d 217, 219 (Alaska 1991) (explaining that [t]he
constitutional right to testify is both personal to the  criminal
defendant  and  fundamental to the dignity and  fairness  of  the
judicial  process  and that [t]he ultimate  decision  whether  to
exercise  the right therefore rests with the defendant, not  with
defendants counsel); cf. Faretta v. California, 422 U.S. 806, 833-
36   (1975)   (holding   that  criminal   defendants   have   the
constitutional right to defend themselves pro se because although
in most criminal prosecutions defendants could better defend with
counsels  guidance  than  by their own unskilled  efforts,  [t]he
right  to  defend is personal and the drafters  of  the  Bill  of
Rights understood the inestimable worth of free choice).

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