State v. Faron Raymond Hawkins , 159 Idaho 507 ( 2015 )


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  •                   IN THE SUPREME COURT OF THE STATE OF IDAHO
    Docket No. 41621
    STATE OF IDAHO,                                      )        Boise, June 2015 Term
    )
    Plaintiff-Respondent,
    )        2015 Opinion No. 115
    v.                                                   )
    )        Filed: December 22, 2015
    FARON RAYMOND HAWKINS,                               )
    )        Stephen Kenyon, Clerk
    Defendant-Appellant.                            )
    Appeal from the District Court of the Fourth Judicial District of the State of
    Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.
    The district court’s amended judgment of conviction is affirmed.
    Faron R. Hawkins, Boise, pro se appellant.
    Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent.
    _______________________________________________
    ON THE BRIEFS
    HORTON, Justice.
    Faron Hawkins appeals from his 2008 conviction for two counts of robbery. Hawkins
    argues that the district court’s 2010 retroactive determination that he was competent to stand trial
    in 2008 violated his due process rights. He also argues that he was not competent to waive his
    right to counsel and represent himself pro se. We affirm.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    In January of 2008, a jury convicted Hawkins of two counts of robbery. At trial, Hawkins
    admitted that he robbed banks but claimed that he did so under duress that stemmed from his
    previous involvement with various government agencies, including the Central Intelligence
    Agency (CIA) and Defense Intelligence Agency (DIA). Subsequently, the Court of Appeals
    determined that the district court erred when it did not “sua sponte order a psychiatric evaluation
    and conduct a hearing . . . .” State v. Hawkins, 
    148 Idaho 774
    , 783, 
    229 P.3d 379
    , 388 (Ct. App.
    2009) (emphasis original) [hereafter Hawkins I]. The Court of Appeals vacated Hawkins’
    judgment of conviction and remanded the case so that Hawkins could undergo a competency
    1
    evaluation pursuant to Idaho Code sections 18-211 and 18-212. 
    Id.
     Significantly, the Court of
    Appeals opinion stated:
    Because it is not possible to retroactively make a determination as to
    Hawkins’ competency at the time he was tried, we must vacate the judgment of
    conviction and leave the state free to retry Hawkins if he is found to be competent
    to stand trial.
    
    Id.
    On remand, the district court conducted a competency hearing on November 12, 2010,
    where it heard testimony from licensed psychologist Dr. Chad Sombke and licensed psychiatrist
    Dr. Michael Estess. Both experts had evaluated Hawkins and determined that Hawkins was
    competent during the entire course of his legal proceedings. In its order of December 6, 2010, the
    district court found that Hawkins was competent to stand trial in January of 2008 (the 2010
    competency determination). However, the district court determined that the above-quoted
    language from the Court of Appeals was the law of the case and required it to retry the case. The
    State successfully moved for leave to pursue a permissive interlocutory appeal to this Court.
    On appeal, this Court reversed the district court’s decision, holding that “[n]either the law
    of the case doctrine nor I.A.R. 38 prevents the district court from making a retroactive
    competency determination as to Hawkins in this case.” State v. Hawkins, 
    155 Idaho 69
    , 75, 
    305 P.3d 513
    , 519 (2013) [hereafter Hawkins II]. Due to the narrow issue presented by the permissive
    appeal, we did not address Hawkins’ claim that the 2010 competency determination violated
    Hawkins’ due process rights. 
    Id.
     at 74–75, 305 P.3d at 518–19.
    On remand, the State filed a motion asking the district court to take judicial notice of its
    2010 competency determination. The district court granted the State’s request to take judicial
    notice of the evidence that led to its 2010 competency determination and determined that it was
    appropriate to conduct another competency hearing to give Hawkins the opportunity to cross-
    examine witnesses and present expert testimony. The district court presumed that its previous
    determination that Hawkins was competent was correct, but it stated this “presumption” would
    be “subject to cross-examination and hearing from [Hawkins’] expert.” The district court set the
    hearing for August 29, 2013.
    On June 6, 2013, Hawkins’ retained counsel moved that Hawkins be declared a needy
    person for the purpose of hiring an expert witness. The district court granted the motion and
    instructed Hawkins’ counsel to “direct any specific requests for services to this Court for prior
    2
    approval.” On June 28, 2013, Hawkins’ attorney moved for leave to withdraw because Hawkins
    no longer wished for the attorney to represent him. At hearing, Hawkins expressed his desire to
    proceed pro so. The district court stated Hawkins’ desire to represent himself was a
    “conundrum,” explaining that Hawkins’ pro se representation in a hearing where his main
    argument was that he was incompetent “creates a real conflict in the court’s way of looking at
    this thing.” The district court again explained to Hawkins that he had the right to a public
    defender and conducted an extensive Faretta 1 inquiry. The district court granted Hawkins’
    request to proceed pro se and appointed the public defender to serve as standby counsel.
    Afterwards, Hawkins filed many pro se motions. At a status conference on July 17, 2013,
    the district court acknowledged these motions but deferred ruling on them because the “sole
    issue” before it was whether Hawkins was competent to stand trial in 2008. Hawkins informed
    the district court that he had not subpoenaed Dr. Estess for cross-examination and that he had not
    met with Dr. Claude Robert Cloninger, the psychiatrist that Hawkins wished to hire as an expert
    witness. The district court warned Hawkins that his competency hearing was rapidly approaching
    and that Hawkins needed to subpoena witnesses so that they could testify at the hearing.
    Another status conference was held two weeks later. Hawkins told the district court that
    he had contacted Dr. Cloninger by email and that Dr. Cloninger was “awaiting verification for
    payment.” In response to questioning, Hawkins informed the district court that Dr. Cloninger’s
    fee was $450 an hour and that he would have to be compensated for travel and lodging because
    he resided in St. Louis, Missouri. The district court found that using public funds to pay for Dr.
    Cloninger was “not reasonable” and vacated the competency hearing scheduled for August 29,
    2013.
    On August 13, 2013, the district court issued a written order where it found that the costs
    for obtaining Dr. Cloninger “could easily exceed $20,000.” The district court stated that it had
    reviewed “the State Board of Medicine list of psychologists and psychiatrists” and determined
    that “there are many qualified experts in this field in the Boise, Nampa, Caldwell and Twin Falls
    area that could provide expert opinion to the Court regarding the defendant’s competency to
    proceed now and retroactively.” The district court ordered Hawkins to submit to an examination
    by a local expert, disclose his choice of expert by August 29, 2013, and submit to examination
    within thirty days of the date of disclosure. The order further provided that “[f]ailure of the
    1
    Faretta v. California, 
    422 U.S. 806
     (1975).
    3
    defendant to submit to examination within this time period will preclude the defendant from
    presenting expert witness testimony at the retroactive competency hearing.” The order also
    noted, but did not decide, various other motions Hawkins had filed. The district court did,
    however, deny Hawkins’ motion to strike Dr. Estess’ testimony “because there is no basis in fact
    or law to grant such a motion.” Hawkins’ opening brief does not assert that the district court
    erred in making these decisions.
    On October 7, 2013, the district court issued an order setting a hearing for October 17,
    2013, to “select a psychologist/psychiatrist to evaluate the defendant.” The order further
    provided that “[i]n the event the defendant does not submit in writing prior to the hearing his
    selection of a psychologist/psychiatrist the court then will make the selection.”
    Hawkins did not notify the district court of his selection before the October 17th
    hearing. 2 At the hearing Hawkins, once again, told the district court that he wanted Dr. Cloninger
    to evaluate him. The district court then stated that it would appoint Dr. Robert Engle to evaluate
    Hawkins and Hawkins responded that he would not participate in an evaluation by Dr. Engle.
    After a break to confer with standby counsel, Hawkins requested a seven-day continuance so that
    he could have time to decide whether his standby counsel would become attorney of record. The
    district court denied this request, explaining that “[t]his has been going on since April.” The
    district court again took a recess to give Hawkins time to confer with standby counsel. Before
    recessing, the district court outlined three options for Hawkins, stating:
    [I]f [standby counsel] is going to be your counsel, I’ll give him an opportunity to
    go out in the community, find a psychiatrist or psychologist and testify on your
    behalf. And that’s not going to be revocable on your part. He is going to be your
    counsel.
    Or Option 2 is that you submit to Dr. Engle’s evaluation. The court would
    appoint Dr. Engle, and he would be given an opportunity to evaluate you, submit
    a report to the court, [and] proceed accordingly.
    Or Option 3, if you decline to submit to an evaluation by Dr. Engle, the
    court then will sentence you here forthwith today.
    Following the recess, Hawkins informed the district court that he had decided to be
    represented by standby counsel and suggested that his parents might be able to retain Dr.
    Cloninger. The district court stated that it was “not going to proceed down that path” without
    Hawkins showing that his parents had committed to pay Dr. Cloninger. The district court
    2
    Hawkins did submit a motion captioned “Notice of Defenses [sic] Psychiatrist[:] Motion for Payment to
    Psychiatrist” on October 21, 2013. In this filing, Hawkins reiterated his selection of Dr. Cloninger as his psychiatric
    expert.
    4
    reiterated its decision that Hawkins would not be able to “fire” his attorney if he elected to be
    represented and that the district court would not condition the appointment of counsel on
    Hawkins’ ability to hire Dr. Cloninger. Hawkins evidently became angry and stated: “Then you
    should just sentence me today.” 3 After determining that standby counsel did not have difficulty
    communicating with Hawkins during their “brief discussions,” and that Hawkins was not on any
    psychotropic medications, the district court proceeded to sentencing. The district court then
    found as follows:
    Well, the court will find from the totality of the record that Mr. Hawkins,
    particularly in light of the extensive motions that he has filed since this was
    submitted back to the court in April of this year . . . is competent, and he
    understands the nature of the proceeding, that he has made a decision, and I find
    him to have made a knowing and intelligent decision to continue to insist that a
    psychiatrist from St. Louis, Missouri, be appointed to testify on his behalf for his
    articulated basis for not appointing that psychiatrist, that there have been
    numerous delays caused as a result of again Mr. Hawkins[’] . . . failure to follow
    through with the court’s specific order. The court will find that there has been
    ample opportunity afforded to Mr. Hawkins to present evidence to the court
    regarding his mental status at his trial in 2007 [sic].
    The court will find that the testimony and evidence presented to the court
    by Dr. Estess that Mr. Hawkins was competent to stand trial, that he was at the
    time of his evaluation by both Dr. Sombke and Dr. Estess was capable of
    understanding the proceedings, assisting in his defense, and that that remains the
    case today.
    The district court then re-imposed Hawkins’ original sentence, consisting of concurrent unified
    life sentences, with thirty 4 years fixed. Hawkins timely appealed.
    II. STANDARD OF REVIEW
    We freely review constitutional issues because they present questions of law. Estrada v.
    State, 
    143 Idaho 558
    , 561, 
    149 P.3d 833
    , 836 (2006). A district court’s factual determination that
    a defendant is competent to stand trial will not be disturbed if it is supported by substantial,
    competent evidence. State v. Lovelace, 
    140 Idaho 53
    , 63, 
    90 P.3d 278
    , 288 (2003).
    III. ANALYSIS
    Hawkins argues that: (1) retroactive competency hearings that occur more than a year
    after trial violate due process; (2) there was insufficient evidence to support the district court’s
    3
    At this point, Hawkins repeatedly interrupted the district court’s discussion with counsel, its findings regarding
    Hawkins’ competency, and its pronouncement of sentence. These interjections included Hawkins’ apparent request
    that he be sentenced to life imprisonment (“And I’ll take life. You can give that to me.”) and his observation that the
    district judge was “a diseased man.”
    4
    In doing so, the district court ignored Hawkins’ request to make it “an even 40.”
    5
    determination that Hawkins was competent to stand trial in 2008; and (3) Hawkins was not
    competent to waive his right to counsel. Hawkins was originally represented in this appeal by
    appointed counsel. After Hawkins and the State’s initial briefs were filed, this Court granted
    Hawkins’ attorney’s motion to withdraw and directed that Hawkins proceed pro se in this appeal.
    Hawkins has filed a “Closing Brief of Appellant,” which is essentially a reply brief that attempts
    to raise numerous additional issues.
    A. We do not adopt a bright-line rule that retroactive competency hearings that occur
    more than a year after trial violate due process.
    After a hearing on November 12, 2010, the district court retroactively determined that
    Hawkins was competent during his trial, which ended on January 11, 2008. Hawkins II, 
    155 Idaho 69
    , 70–71, 
    305 P.3d 513
    , 514–15 (2013). Thus, the district court’s retroactive
    determination was made approximately thirty-four months after Hawkins’ trial ended. However,
    the district court determined that the law of the case prevented it from making a retroactive
    competency determination. This Court reversed the latter decision. Hawkins II, 155 Idaho at 75,
    305 P.3d at 519. On remand, after Hawkins failed to obtain psychiatric expert testimony, on July
    31, 2013, the district court once again determined that Hawkins was competent at the time of his
    trial. Hawkins argues we should adopt a per se rule that retroactive competency hearings
    conducted more than a year after trial violate due process.
    “The failure to observe procedures adequate to protect a defendant’s right not to be tried
    or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.”
    Lovelace, 
    140 Idaho at 62
    , 
    90 P.3d at
    287 (citing Pate v. Robinson, 
    383 U.S. 375
     (1966)); see
    also I.C. § 18-210. The test for competency to stand trial is “[w]hether a defendant has sufficient
    present ability to consult with his lawyer with a reasonable degree of rational understanding and
    whether he has a rational, as well as factual, understanding of the proceedings against him.” State
    v. Hanson, 
    152 Idaho 314
    , 325, 
    271 P.3d 712
    , 723 (2012) (quoting Dunlap v. State, 
    141 Idaho 50
    , 59, 
    106 P.3d 376
    , 385 (2004)).
    This Court has previously observed that it had not addressed whether retroactive
    competency determinations were permissible, but noted that such determinations have been
    made in other jurisdictions. Hawkins II, 155 Idaho at 73, 305 P.3d at 517. There we stated:
    [R]etroactive competency determinations are allowed in many jurisdictions under
    certain circumstances. See, e.g., Odle v. Woodford, 
    238 F.3d 1084
    , 1089 (9th
    Cir.2001) (“We have said that retrospective competency hearings may be held
    when the record contains sufficient information upon which to base a reasonable
    6
    psychiatric judgment.”); Montana v. Bostwick, 
    296 Mont. 149
    , 
    988 P.2d 765
    ,
    772–73 (1999) (holding that the erroneous failure to hold a pretrial competency
    hearing can be “cured” by a meaningful retrospective hearing); Traylor v. State,
    
    280 Ga. 400
    , 
    627 S.E.2d 594
    , 601 (2006) (remanding for retrospective
    competency hearing at which defendant was to “have the burden to show
    incompetency by a preponderance of the evidence”); People v. Ary, 
    51 Cal.4th 510
    , 
    120 Cal.Rptr.3d 431
    , 
    246 P.3d 322
    , 329 (2011) cert. denied, ––– U.S. ––––,
    
    132 S.Ct. 136
    , 
    181 L.Ed.2d 56
     (2011) (holding that once the feasibility of a
    retrospective hearing is determined, requiring a criminal defendant to prove at a
    retrospective mental competency hearing that he was incompetent when tried
    earlier does not violate the defendant’s due process rights).
    
    Id.
    The general rule in other jurisdictions is that retrospective competency hearings are
    disfavored, but they “are permissible when a court can conduct a meaningful hearing to evaluate
    retrospectively the competency of the defendant.” 22A C.J.S. Criminal Law § 791. “A
    ‘meaningful’ determination is possible where the state of the record, together with such
    additional evidence as may be relevant and available, permits an accurate assessment of the
    defendant’s condition at the time of the original proceedings.” Id. When determining whether a
    retroactive hearing is permissible, courts have considered various “non-exhaustive factors,”
    including:
    [1] the passage of time since the trial, [2] statements made by the defendant at
    trial, [3] the availability of contemporaneous medical and psychiatric evidence,
    [4] the availability of transcript or video record of the relevant proceedings, and
    [5] the availability of witnesses, both expert and nonexpert, who could offer
    testimony regarding the defendant’s mental status at the time of trial.
    Id.
    Focusing on the time factor, courts have held “[t]ime is a relevant, though not
    determinative, factor, and even the passage of considerable time should not present an
    insurmountable obstacle.” 40 Am. Jur. Proof of Facts 2d 171. Other state supreme courts have
    ruled that retroactive competency hearings that occur more than a year after trial are permissible.
    See Williams v. State, 
    378 A.2d 117
    , 119 (Del. 1977) (allowing retroactive competency hearing
    conducted “two and one half years” after trial), cert. denied sub nom. Williams v. Delaware, 
    436 U.S. 908
     (1978); Johnson v. Commonwealth, 
    103 S.W.3d 687
    , 693 (Ky. 2003) (affirming trial
    court’s determination that “seven years between the trial and the retrospective hearing was not
    enough in and of itself to deny Appellant due process.”). The appropriate inquiry is whether a
    7
    meaningful determination occurred: a bright-line rule that only considers the timing of the
    hearing would not further this broader inquiry.
    Hawkins argues that the Supreme Court has never held a retroactive competency
    proceeding that occurred more than a year after trial was valid. This is most likely because the
    Supreme Court has never held that the time when a competency hearing is conducted is
    dispositive of the validity of the hearing. See Drope v. Missouri, 
    420 U.S. 162
    , 183 (1975)
    (remanding for new trial largely because there was doubt about competency and because the
    judge was not able to observe the defendant at trial because the defendant was hospitalized for a
    suicide attempt); Pate, 
    383 U.S. at
    385–87 (considering timing to merely be an aggravating
    factor in case where defendant had prolonged history of mental instability); Dusky v. United
    States, 
    362 U.S. 402
    , 402–03 (1960). Additionally, Hawkins points to no case that interprets
    Drope, Pate, and Dusky as imposing a bright-line rule that bars retroactive competency hearings
    that occur more than year after trial.
    Although not controlling precedent, we note that the Ninth Circuit Court of Appeals
    evidently does not view timing alone to be dispositive. In a decision issued in July of 2011, the
    circuit court directed the district court to make a retroactive determination of the defendant’s
    competency to waive his right to appeal in 2008 and, if the defendant was found not to be
    competent to waive his right to appeal, to further determine whether the defendant was
    competent to waive his right to counsel in July of 2008 for the penalty phase of a capital trial.
    United States v. Duncan, 
    643 F.3d 1242
    , 1250 (9th Cir. 2011).
    We are not persuaded to adopt Hawkins’ proposed bright-line rule. Instead, we adopt the
    broader multi-factor approach when evaluating the validity of a retroactive competency
    determination.
    B. The district court did not err when it determined that Hawkins was competent to stand
    trial in 2008.
    Hawkins asserts error in the retroactive competency determination due to the passage of
    time between the trial and the determination, the absence of evidence contemporaneous to the
    trial, and “the fluid nature of mental illness.”
    In this case, the district court was presented with evidence relating to the factors used to
    gauge whether a meaningful retroactive competency proceeding could take place. The testimony
    of Drs. Estess and Sombke is particularly informative because they were the only two experts
    8
    who presented evidence at Hawkins’ competency hearing. Both doctors opined that Hawkins
    was competent.
    Dr. Estess testified to interaction with Hawkins at the time of trial. Dr. Estess testified
    that he first saw Hawkins during the two-year timeframe of “ ‘06 to April of ‘08” and discussed
    Hawkins’ mental state with his clinical staff and jail staff. In Dr. Estess’ view, Hawkins was not
    consistent in manifesting delusions and “selectively presented information” regarding delusions
    about government conspiracies to his parents and common-law wife, which made it doubtful that
    he suffered from delusions. He characterized Hawkins as “manipulative,” “play[ing] mind games
    with people,” and “deceitful.” Dr. Estess’ conclusion was that Hawkins was entirely competent
    to stand trial. Dr. Estess also testified that he read pretrial hearing transcripts and the trial
    transcript, which reaffirmed his opinion that Hawkins was competent.
    Dr. Sombke also testified at the November 12, 2010, competency hearing and concluded
    that Hawkins was competent and that the stories Hawkins told were just an attempt “to benefit
    his current situation.” Originally, Dr. Sombke had evaluated Hawkins on August 4, 2010, and
    reported that Hawkins did not have the capacity to assist in his own defense because he suffered
    from delusional beliefs. However, Dr. Sombke changed his mind after reviewing collateral
    information which showed that Hawkins did not consistently report involvement with
    government agencies. This collateral information included Department of Correction reports, the
    prison psychiatrist’s notes, notes from treatment staff, a psychiatric evaluation of Hawkins’
    common-law wife, an evaluation conducted by Dr. Michael Johnston, 5 and information received
    from Dr. Estess. Dr. Sombke explained the changed opinion as follows:
    In reviewing the collateral information from the prison and the other evaluations I
    saw, I saw almost no references to the C.I.A., the D.I.A., or government agencies.
    It wasn’t present in what Mr. Hawkins was telling other people. So it was just -- it
    was just not consistent with the true delusional disorder that would have been in
    those other conversations.
    Drs. Sombke and Estess both explained that it was reasonable to originally consider Hawkins
    incompetent based upon his statements but to alter that opinion based on collateral information.
    5
    Dr. Johnston’s March 20, 2008, report was admitted into evidence, but Dr. Johnston did not testify at the
    competency hearing. Dr. Johnston was unable to conclusively diagnose Hawkins because Hawkins refused to
    participate in tests, but Dr. Johnston thought that Hawkins “does appear to be psychologically impaired” with a
    “dissociative identity disorder,” otherwise known as multiple personality disorder. At the competency hearing, Dr.
    Sombke testified this was yet another instance of Hawkins being inconsistent and “playing around with mental
    health professionals” because Hawkins never represented to Dr. Sombke that he had other personalities. Further, Dr.
    Sombke testified that he did not see any “CIA information in Dr. Johnston’s report.”
    9
    They explained that this is because a professional conducting a competency evaluation must take
    the subject’s representations at face value and that it is difficult to diagnose a person who is not
    being honest. Hawkins was represented by counsel at the November 12, 2010, competency
    hearing and counsel was able to cross-examine Drs. Sombke and Estess as to these opinions.
    Hawkins’ primary challenge to the district court’s retroactive competency determination
    is based on the timing of the determination. As we have explained, the passage of time alone
    does not invalidate a retroactive competency determination. There was important evidence
    presented that mitigated the impact of the passage of time. The contemporaneous medical
    observations of Dr. Estess and his staff were important to the determination that Hawkins was
    competent in 2008. Likewise, Drs. Estess and Sombke were able to review the trial transcript
    when formulating their opinions. We also find it significant that the same judge making the
    retroactive competency determination presided over the trial and had the opportunity to factor in
    his first-hand observations of Hawkins’ condition at the time of trial and compare those
    observations with the testimony of the experts.
    The district court attempted to give Hawkins a second chance to present evidence relating
    to his competency, but Hawkins failed take advantage of this opportunity due to his insistence on
    having Dr. Cloninger serve as his expert witness. The district court’s extension of the
    opportunity for Hawkins to present additional evidence regarding his competency shows that the
    district court made every reasonable effort to develop a complete factual record upon which to
    make a meaningful competency determination. The district court relied on its earlier 2010
    competency determination only after Hawkins left it with no alternative.
    The district court’s competency finding was based upon substantial and competent
    evidence. The expert witnesses agreed that Hawkins was competent at the time of trial in 2008.
    The district court, as finder of fact, was entitled to rely on these opinions. For these reasons, we
    are unable to find error in the district court’s decision that Hawkins was competent at the time of
    trial.
    C. The district court did not err by permitting Hawkins to represent himself.
    Relying on Indiana v. Edwards, 
    554 U.S. 164
     (2008), Hawkins claims that the district
    court erred by permitting him to represent himself. 6 Prior to trial, the district court conducted a
    6
    Although Hawkins’ argument is directed to the district court’s decision to permit self-representation at trial, the
    State’s responsive briefing appears to assume that the argument is directed at the district court’s determination that
    10
    Faretta hearing and determined that Hawkins should be permitted to represent himself. Hawkins
    I, 
    148 Idaho 774
    , 776, 
    229 P.3d 379
    , 381 (Ct. App. 2009). Likewise, in 2013, due to its concerns
    regarding the “conundrum” of evaluating Hawkins’ competency to waive the right to counsel in
    connection with proceedings wherein his primary contention was a lack of competence at trial,
    the district court conducted another extensive Faretta examination before permitting Hawkins to
    represent himself.
    Hawkins asserts that the district court’s error (or errors) consisted of its failure to apply
    the holding in Edwards, when permitting Hawkins to exercise the right of self-representation.7
    The parties’ briefs on this issue posit the applicable standard of review as a determination
    whether the district court abused its discretion. This Court has not yet articulated a standard of
    review for Edwards challenges, but other courts have held such challenges are reviewable for an
    abuse of discretion, while being mindful that constitutional issues may also be implicated. United
    States v. Johnson, 
    610 F.3d 1138
    , 1145 (9th Cir. 2010); United States v. Berry, 
    565 F.3d 385
    ,
    389–90 (7th Cir. 2009). We need not decide the applicable standard of review because Hawkins
    advances this claim for the first time on appeal. This is significant because alleged claims of
    error that have not been preserved by objection are reviewed for fundamental error.
    [I]n cases of unobjected to fundamental error: (1) the defendant must demonstrate
    that one or more of the defendant’s unwaived constitutional rights were violated;
    (2) the error must be clear or obvious, without the need for any additional
    information not contained in the appellate record, including information as to
    whether the failure to object was a tactical decision; and (3) the defendant must
    demonstrate that the error affected the defendant’s substantial rights, meaning (in
    most instances) that it must have affected the outcome of the trial proceedings.
    State v. Perry, 
    150 Idaho 209
    , 226, 
    245 P.3d 961
    , 978 (2010). Thus, we must determine whether
    the district court’s decision to permit Hawkins to exercise his right of self-representation was, in
    itself, unconstitutional.
    Hawkins contends that the Supreme Court’s holding in Edwards is that a higher standard
    of competence is required to permit a defendant to self-represent than to stand trial. In support of
    this argument, Hawkins notes the two-pronged test for competency to stand trial, which
    considers “[w]hether a defendant has sufficient present ability to consult with his lawyer with a
    Hawkins should be permitted to represent himself in the 2013 competency proceedings. As will be explained, our
    holding addresses both phases of the proceedings below.
    7
    The district court could not have applied the Edwards holding when deciding to permit Hawkins to represent
    himself at trial. Edwards was decided after the completion of the trial.
    11
    reasonable degree of rational understanding and whether he has a rational, as well as factual,
    understanding of the proceedings against him.” State v. Hanson, 
    152 Idaho 314
    , 325, 
    271 P.3d 712
    , 723 (2012) (quoting Dunlap v. State, 
    141 Idaho 50
    , 59, 
    106 P.3d 376
    , 385 (2004)). By
    contrast, relying on Edwards, 
    554 U.S. at
    175–76, Hawkins asserts that Edwards requires that
    the trial court determine whether the defendant is able “to carry out the basic tasks needed to
    present his own defense without the help of counsel.”
    We are not persuaded by this argument. In Edwards, the Supreme Court identified the
    legal question it was deciding as follows:
    We assume that a criminal defendant has sufficient mental competence to stand
    trial (i.e., the defendant meets Dusky’s standard) and that the defendant insists on
    representing himself during that trial. We ask whether the Constitution permits a
    State to limit that defendant’s self-representation right by insisting upon
    representation by counsel at trial—on the ground that the defendant lacks the
    mental capacity to conduct his trial defense unless represented.
    Edwards, 
    554 U.S. at 174
    . The Supreme Court answered this question by holding that “the
    Constitution permits States to insist upon representation by counsel for those competent enough
    to stand trial under Dusky but who still suffer from severe mental illness to the point where they
    are not competent to conduct trial proceedings by themselves.” Edwards, 
    554 U.S. at 178
    .
    This appeal presents a much different question. The United States Constitution and the
    Idaho Constitution each guarantee the right to self-representation. Faretta v. California, 
    422 U.S. 806
    , 819 (1975); State v. Folk, 
    151 Idaho 327
    , 339, 
    256 P.3d 735
    , 747 (2011). Rather than asking
    whether the State is permitted, in the limited circumstance wherein the defendant is not
    competent to perform the basic tasks needed to present his own case, to deny a defendant the
    right to proceed pro se, this appeal asks whether the State is required to abridge the
    constitutional right to self-representation. We agree with the conclusion reached by the Arizona
    Supreme Court when it answered the question before us: “Edwards allows, but does not require,
    states to insist upon representation by counsel for certain “gray-area” defendants. It does not give
    such a defendant a constitutional right to have his request for self-representation denied.” State v.
    Gunches, 
    234 P.3d 590
    , 593 (Ariz. 2010). The Ninth Circuit Court of Appeals is in accord with
    this view:
    In United States v. DeShazer, 
    554 F.3d 1281
    , 1290 (10th Cir.2009), the
    Tenth Circuit held—as we hold today—that Edwards does not compel a trial court
    to deny a defendant the exercise of his or her right to self-representation; it simply
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    permits a trial court to require representation for a defendant who lacks mental
    competency to conduct trial proceedings.
    United States v. Ferguson, 
    560 F.3d 1060
    , 1070 n.6 (9th Cir. 2009) (emphasis in original). As
    there is no clear violation of Hawkins’ constitutional rights, we will not further address this
    claimed error.
    D. We will not address Hawkins’ claims raised for the first time in his “Closing Brief of
    Appellant.”
    After Hawkins decided to proceed pro se, he filed a multitude of pro se motions. The
    district court acknowledged these motions but deferred ruling on them because the only issue
    before it was whether Hawkins was competent to stand trial in 2008. Apart from that central
    question, the district court only ruled on Hawkins’ motion to strike Dr. Estess’ testimony. As he
    did before the district court, in the course of this appeal Hawkins changed course and elected to
    represent himself after the State filed its Respondent’s brief. His pro se “Closing Brief of
    Appellant” raises many issues not addressed in his opening brief. These claims largely repeat
    issues that the district court declined to address, including: allegations of prosecutorial and
    judicial misconduct, coercion, and fraud; challenges to this Court’s holding in the permissive
    appeal; a Faretta challenge; an argument that no valid indictment exists in this case; challenges
    to the expert’s psychiatric opinions based on Hawkins’ self-diagnosis; and that he was denied
    discovery and proper access to legal documents.
    “A criminal defendant proceeding pro se still must follow the court’s substantive and
    procedural rules.” State v. Dalrymple, 
    144 Idaho 628
    , 636, 
    167 P.3d 765
    , 773 (2007) (citing
    Faretta, 
    422 U.S. at 832
    ). Ordinarily, an appellate court does not consider arguments raised for
    the first time in a reply brief because a respondent does not have a full opportunity to respond to
    those issues. State v. Watkins, 
    148 Idaho 418
    , 422, 
    224 P.3d 485
    , 489 (2009). Here, Hawkins has
    raised issues that are unrelated to the competency issues that were originally raised on appeal and
    which were the subject of the district court’s decision. Further, the State has not had an
    opportunity to respond to the issues raised in Hawkins’ reply brief. Therefore, we will not
    address these arguments.
    IV. CONCLUSION
    For the foregoing reasons, we affirm the district court’s amended judgment of conviction.
    Chief Justice J. Jones and Justices EISMANN, BURDICK and W. JONES, CONCUR.
    13