Paschall v. State ( 2014 )

Cite as 2014 Ark. App. 246
ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-13-970
CHRISTOPHER LEE PASCHALL Opinion Delivered April 23, 2014
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. CR13-574-1]
STATE OF ARKANSAS HONORABLE WILLIAM A. STOREY,
APPELLEE JUDGE
AFFIRMED
RITA W. GRUBER, Judge
Christopher Lee Paschall appeals his jury conviction for the misdemeanor offense of
shoplifting, a charge arising from an incident at a Walmart Neighborhood Market in
Springdale around 2:30 a.m. on October 3, 2012. Paschall contends on appeal that the circuit
court erred (1) in excluding testimony by his witness who would have provided alibi
testimony, and (2) in allowing him to discharge his attorneys and proceed pro se without first
ensuring that he had voluntarily waived his right to counsel. He argues that reversal is
warranted because these violations of his Sixth Amendment rights were highly prejudicial to
him. We affirm.
Despite the State’s previous inquiry as to who would testify for the defense, Paschall
did not disclose his witness Craig Smith until the afternoon before trial, which was held on
July 18, 2013. After the jury was seated at trial, the court called a recess to address the State’s
objection to calling Smith. Paschall’s counsel stated:
Cite as 2014 Ark. App. 246
We [had] knowledge of an alibi witness the past couple of days, had trouble getting a
hold of this witness, so we were treating it as unavailable. It came to our attention
yesterday afternoon at approximately 3:30 that this witness would be available today.
As soon as I learned this, I did contact the State.
The State responded that it had not had time to prepare for or talk with the witness and that
allowing his testimony would be unfair. Counsel then requested a continuance “so that we
can properly give that information to the State and have him.” The court denied the request,
stating that the case had been pending since April 2013 and needed resolution.
Counsel then proffered the following testimony by Smith regarding Paschall’s
whereabouts on the night at issue: Paschall arrived at Smith’s home around 11:00 p.m., they
watched Duck Dynasty all evening and drank beer until about 4:00 a.m., Paschall slept on the
couch, and he left around 10:00 a.m. the same day. Finding that the State had not been given
reasonable notice, the court again ruled that it would not permit the witness to testify. The
case proceeded to trial.
At the close of the State’s case, the circuit court denied a motion by the defense for a
directed verdict. The defense again attempted to introduce Smith’s testimony, and the court
again sustained the State’s objection because the witness had not been disclosed until late the
previous afternoon. At this point, Paschall’s court-appointed attorneys informed the court
that Paschall wanted to represent himself and to relieve them as his counsel. When Paschall
confirmed the accuracy of his counsels’ statement, the court informed him:
I’m gonna give you an opportunity to be heard. Well, I think, quite frankly, it’s a
mistake unless you’re trained in the law and licensed to practice law to represent
yourself. You have a right to do that and if you elect to do that, I’m going to appoint
[your present attorneys] as stand-by counsel and you can consult with them, but I
think it’s a mistake, especially at this point in this trial. As I say, I think it’s a mistake
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to do that but it’s your decision and if that’s what you wish to do then you can do it.
Paschall then requested time to obtain other representation. The court denied the request and
the following colloquy took place:
THE COURT: [T]oday is the day to resolve this case. I’ve appointed two very
capable lawyers to represent you. I think it’s a mistake to
discharge your lawyers but you have a right to do that. And if
you want to do that and represent yourself then I’ll permit you
to do it with standby counsel here.
PASCHALL: I do, Judge.
THE COURT: All right, that’s fine.
Paschall then proceeded to represent himself, putting on a case for the defense without the
testimony of Craig Smith. After the jury returned its guilty verdict, Paschall argued at the
sentencing phase that he should not receive any jail time. The jury sentenced him only to a
$1000 fine.
I. Exclusion of Smith’s Testimony
Matters pertaining to the admissibility of evidence are left to the sound discretion of
the circuit court; such a ruling will not be reversed absent an abuse of that discretion nor
absent a showing of prejudice, which is not presumed. McEwing v. State, 366 Ark. 456, 237
S.W.3d 43 (2006). Rule 18.3 of the Arkansas Rules of Criminal Procedure (2013) requires
that
the prosecuting attorney shall, upon request, be informed as soon as practicable before
trial of the nature of any defense which defense counsel intends to use at trial and the
names and addresses of persons whom defense counsel intends to call as witnesses in
support thereof.
Rule 19.7, entitled Failure to Comply: Sanctions, allows the court to take various actions: order
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a non-compliant party to permit discovery or inspection of materials not previously disclosed,
grant a continuance, prohibit the non-compliant party from introducing in evidence the
material not disclosed, or enter such other order as it deems proper under the circumstances.
Ark. R. Crim. P. 19.7(a) (2013); see also Williams v. State, 338 Ark. 178, 992 S.W.2d 89
(1999).
Paschall does not challenge the trial court’s exercise of discretion in excluding the
testimony of his witness. Instead, he relies on his constitutional right to call witnesses in his
own defense. See Rock v. Arkansas, 483 U.S. 44, 52 (1987) (holding that the Compulsory
Process Clause of the Sixth Amendment “grants a defendant the right to call ‘witnesses in his
favor,’ a right that is guaranteed in the criminal courts of the States by the Fourteenth
Amendment”) (quoting Washington v. Texas, 388 U.S. 14, 17–19 (1967)). He argues that the
exclusion of his witness’s testimony—the most severe sanction available—hindered the truth-
seeking function of the court and was inappropriate because there were no dilatory or
oppressive tactics on his part. Cf. Taylor v. Illinois, 484 U.S. 400, 417 (1988) (holding that
“the case fits into the category of willful misconduct in which the severest sanction is
appropriate”). However, Paschall made no arguments below based on this constitutional right
or related case law, and he thus is barred from doing so on appeal. McCraney v. State, 2010
Ark. 96, 360 S.W.3d 144.
II. Waiver of the Right to Counsel
Paschall contends that the circuit court erred by allowing him to discharge his attorneys
and proceed pro se without ensuring a voluntary waiver of his Sixth Amendment right to
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counsel. He raises three arguments under this point: that his request for time to find
representation made it clear that he did not want to represent himself; that he was not made
aware of the disadvantages and risks of self-representation, and thus did not timely and
unequivocally waive his right to counsel; and that his stand-by counsel did not provide
sufficient assistance to render his involuntary waiver moot.
The right of a criminal defendant to represent himself and to make his own defense
personally is implicit in the Sixth Amendment right to counsel. Richard v. State, 2012 Ark.
App. 468. A defendant in a criminal case may invoke his right to defend himself pro se
provided that (1) the request to waive the right to counsel is unequivocal and timely asserted,
(2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the
defendant has not engaged in conduct that would prevent the fair and orderly exposition of
the issues. Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999). The trial court must explain
to the accused that he is entitled as a matter of law to an attorney, must question him to
determine if he can afford to hire a lawyer, and must explain the importance of having an
attorney’s assistance during trial and the impediments of not having an attorney. Id. We have
previously noted, however, that “[a]n indigent defendant does not have a right to appointed
counsel in a misdemeanor case unless there is a sentence to imprisonment.” Duty v. State, 45
Ark. App. 1, 5, 871 S.W.2d 400, 402 (1994) (citing Scott v. Illinois, 440 U.S. 367 (1979)).
We agree with the State that, despite the circuit court’s incomplete warnings to
Paschall, the court’s determination regarding his ability to represent himself was not clearly
erroneous in light of the fact that no jail time was imposed. Although the better practice
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would have been a more thorough explanation, questioning, and oral findings by the circuit
court, there was no error in its determination that Paschall could represent himself at trial.
Affirmed.
PITTMAN and HARRISON, JJ., agree.
Snively Law Firm, by: Nick Churchill, for appellant.
Dustin McDaniel, Att’y Gen., by: Pamela A. Rumpz, Ass’t Att’y Gen., for appellee.
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