State v. Sueing

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
MICHAEL DUMARK SUEING, Appellant.
Nos. 1 CA-CR 21-0363
1 CA-CR 21-0367
(Consolidated)
FILED 12-01-2022
Appeal from the Superior Court in Maricopa County
Nos. CR2021-101881-001
CR2018-120668-001
The Honorable Suzanne E. Cohen, Judge
The Honorable Peter A. Thompson, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Maricopa County Legal Defender’s Office, Phoenix
By Kyle Kinkead
Counsel for Appellant
STATE v. SUEING
Decision of the Court
MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge D. Steven Williams joined.
H O W E, Judge:
¶1 Michael Sueing appeals his convictions and sentences in two
separately tried cases. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In 2018, Sueing went out for dinner and a drink with a woman
he met at a bus stop. After dinner, Sueing and the woman smoked
marijuana behind a nearby dumpster. At the end of their outing, Sueing
insisted on walking the woman home “at least halfway.” On their walk,
Sueing grabbed the woman, forced his hand down her pants and up her
shirt but stopped when she told him, “No.” At home, the woman found
Sueing’s marijuana in her pocket and contacted him to give it back. That
same night Sueing came to the woman’s apartment to pick up his marijuana
and used her restroom. Sueing grabbed the woman, choked, hit, and raped
her, and made her perform nonconsensual sexual acts on him. The woman
pleaded with him to leave, and he eventually did. The woman called the
police.
¶3 The State charged Sueing with three counts of sexual assault,
one count of aggravated assault, and one count of threatening or
intimidating (“the 2018 case”). Sueing decided to represent himself after
several different attorneys had represented him. After the trial started, but
before a jury was empaneled, Sueing said that he wanted his advisory
attorney to take over. The trial court gave counsel time to prepare and
advised Sueing that he would not be allowed to “flip-flop back” to self-
representation.
¶4 Before the trial recommenced, Sueing’s attorney asked to
withdraw because of a conflict with Sueing over the defense and Sueing’s
statements that caused the attorney to fear for his safety sitting beside
Sueing at trial. The court allowed counsel to withdraw and denied Sueing’s
request to represent himself again. The case was transferred to a different
judge for trial. Not long before trial, Sueing’s new attorney moved to
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withdraw because Sueing had threatened him. The court broached the
possibility of shifting the attorney to an advisory capacity and allowing
Sueing to represent himself, but Sueing chose to proceed to trial with
representation. The court informed him that if he was disruptive at trial, he
would forfeit his right to be present in the courtroom.
¶5 Several days into the trial, as jurors entered the courtroom
and took their seats, Sueing physically assaulted his attorney. Law
enforcement personnel subdued Sueing, and the court declared a mistrial.
The court permitted defense counsel to withdraw and ruled that Sueing had
forfeited his “right to be present in the courtroom for any future trial in this
matter.” The court found that Sueing had “demonstrated that he w[ould]
act on a threat,” was “a danger to anyone and everyone else in the
courtroom as demonstrated by his actions,” and could not “be trusted to
not act out again.” It also found that he had “gone through five (5) attorneys
in this current case and ha[d] demonstrated an inability to work with any
of them.” The court further found that Sueing “was previously granted pro
per status but asked to withdraw that status with a warning that he would
not be allowed to represent himself in the future” and might “very well act
out again” if his “new attorney proceed[ed] to trial with [Sueing] present.”
The court left it to the next trial judge to determine how Sueing might view
any future trial in the case.
¶6 Based on Sueing’s conduct in court, the State charged him
with aggravated assault and interfering with judicial proceedings (“the
2021 case”). Before either case was transferred to a new trial judge, Sueing
asked to represent himself and be present in the courtroom at both trials.
He asserted that because his misconduct related to disagreements with his
previous attorney—who no longer represented him—his presence in the
courtroom was not a concern. The court denied both requests, relying on
the court’s findings and the previous court’s own experience with Sueing.
The court found that Sueing posed risks to the safety of himself and others.
It also found that it could not trust his assurances given that Sueing could
not control, and the court could not predict, when he would erupt. The
court also reasoned that although Sueing could be present in the courtroom
if adequately restrained, the restraints needed would be obvious, which
could tarnish the jury’s view of him. Sueing also posed an additional risk
of acting out to deliberately cause a mistrial. The court further observed that
Sueing had been warned that he would not be allowed to reclaim the right
to self-representation after forfeiting it and that allowing him to represent
himself would threaten the safety of those interacting with him as well as
an orderly trial process.
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¶7 The court allowed Sueing to participate virtually in the
pretrial proceedings for the 2018 and 2021 cases. He repeatedly declined to
do so. A different judge presided over the retrial of the 2018 case—which
began about three months after the mistrial. The court informed Sueing that
he would not be allowed in the courtroom but could watch the proceedings
from a tablet in a holding area adjoining the courtroom. Sueing refused
transport for jury selection on the first day of trial. He was transported on
the second day but was dissatisfied with his viewing arrangement. Sueing
banged on the door of the holding area and told an officer that he would
continue to do so because he could not see the jury over the video feed. The
courtroom heard the banging. The court found “that the banging [was]
absolutely disruptive,” Sueing had “shown over and over again that he
[could not] comport himself in a manner appropriate for these
proceedings,” and that he had forfeited the right to observe the proceedings
virtually. The court ordered Sueing returned to jail and brought back to the
courthouse only if and when he testified. When a deputy told Sueing that
he was being removed, the court heard him banging again. Later that day,
defense counsel asked if Sueing could watch the proceedings from a tablet
at the jail. The court told counsel that it had inquired about that possibility
and was informed that no resources existed to accommodate it.
¶8 On the fourth day of trial, defense counsel told the court that
Sueing asked for another opportunity to watch the trial from a tablet in the
courthouse and “that he promise[d] no more disturbances.” The court
denied the request because Sueing’s “avowal [was not] enough for this
court to risk bringing him back” given his prior conduct, which had
disturbed not only that courtroom but another one as well.
¶9 Sueing elected to testify and was brought to the courthouse
on the sixth day of trial. The court allowed him to watch the proceedings
from a tablet in the holding area before he testified, informing him that
because it was a live feed accessible to the public, he would be unable to see
the jury. The court warned Sueing that his disruptive conduct would lead
to another expulsion.
¶10 During his testimony, Sueing was often argumentative and
unresponsive. He disobeyed the court’s admonitions to comply with trial
rules and made impromptu remarks that counsel was not eliciting
information that jurors should know. After he was examined and the court
excused the jury for the evening recess, Sueing continued to speak in
defiance of the court’s directives and warnings, complaining that the court
and counsel were keeping important evidence from the jury and calling out
to jurors directly what he believed that evidence to be. The court had Sueing
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removed, and the defense rested its case. He was not brought back to the
courthouse.
¶11 The trial court instructed the jury that Sueing’s absence was
“not evidence” and that they “must not consider it” in deciding whether
the State proved the charges beyond a reasonable doubt. The jury found
Sueing not guilty of one count of sexual assault but guilty of the other four
charges.
¶12 The 2021 case went to trial about two months after trial in the
2018 case, with the same judge presiding. Before trial, Sueing’s attorney
moved to reconsider Sueing’s exclusion from the courtroom, arguing that
jurors would infer that he was absent because “the Court ha[d] already
convicted him of disrupting the courtroom” and likely to be “dangerous
because he assault[ed] courtroom participants.” The court summarily
denied the motion. Sueing was not transported to court for jury selection
on the first day of trial. When defense counsel asked about his ability to
view the proceedings from outside the courtroom, the court stated that he
“lost that right when he proceeded to bang on the wall and yell and scream”
during the previous trial and no means existed for him to watch the
proceedings from the jail.
¶13 Sueing was transported to court the next day with the
expectation that he would testify, but he was not allowed to observe the
proceedings. The attorney that Sueing attacked and the officer who
observed the attack testified. After the State rested its case, defense counsel
again moved to reconsider Sueing’s presence. The court denied the motion,
“reiterat[ing] its previous findings” that “Mr. Sueing’s actions and Mr.
Sueing’s actions alone . . . have resulted in his ability to not control himself
in a court proceeding, and therefore not be present in any court
proceedings, other than if he should choose to testify.”
¶14 When Sueing was brought into the courtroom to testify, he
told the court that he had decided not to testify because his inability to see
the proceedings left him unable to “ga[u]ge whether it would be better for
[him] to testify or not.” He also complained about the court’s refusal to let
him watch the trial from outside the courtroom. He asserted that he had
been sitting quietly in the holding area next to the courtroom that day and
had disrupted the last trial from the holding area because he was “given a
tablet with no sound” and believed that he had a right to see the jury.
Sueing was removed from the courtroom and brought back to the jail. The
case went to the jury that day. Jurors were instructed that Sueing’s absence
was “not evidence” to consider in determining whether the State proved
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the charges beyond a reasonable doubt. The jury found Sueing guilty as
charged.
¶15 Sueing was present at his sentencing. In the 2018 case, the trial
court sentenced him to concurrent and consecutive terms totaling 40 years’
imprisonment. In the 2021 case, the court imposed an aggregate sentence of
3.75 years’ imprisonment, to run consecutive to the sentences in the 2018
case. Sueing timely appealed.
DISCUSSION
¶16 Sueing argues that the trial court violated his constitutional
rights to be present and to represent himself at trial, as well as the court’s
duties under Arizona Rule of Criminal Procedure (“Rule”) 9.2 to enable his
participation at trial after expelling him from the courtroom. Sueing does
not challenge the court’s initial ruling excluding him from the courtroom
during the 2018 case trial. But he contends that the trial court erred by not
revisiting that ruling despite his promise of future good behavior, the
passage of time, and the court’s affirmative duty to facilitate his
participation at trial. We review a constitutional challenge to the trial
court’s expulsion of a defendant for disruptive conduct for an abuse of
discretion. Illinois v. Allen, 397 U.S. 337, 343 (1970). The court “must be given
sufficient discretion to meet the circumstances of each case” and “[n]o one
formula for maintaining the appropriate courtroom atmosphere will be best
in all situations.” Id.; cf. State v. Stewart, 139 Ariz. 50, 54 (1984) (citing Allen
in support of applying an abuse-of-discretion standard to the trial court’s
decision to shackle a defendant with a history of violence and escape). We
review the denial of a motion for self-representation for an abuse of
discretion. State v. Dunbar, 249 Ariz. 37, 44 ¶ 10 (App. 2020).
I. The trial court permissibly excluded Sueing from his trials.
A. The court did not violate Sueing’s constitutional right to be
present.
¶17 The United States and Arizona Constitutions protect a
defendant’s right to be present at trial. See U.S. Const. amends. VI, XIV;
Ariz. Const. art. 2, § 24; Allen, 397 U.S. at 338 (confrontation clause); United
States v. Gagnon, 470 U.S. 522, 526 (1985) (due process). But that right is not
absolute. The trial court has both the right and the responsibility to conduct
trials without disruption, and it may take measures necessary to dispose of
cases in an orderly fashion. State v. Delvecchio, 110 Ariz. 396, 400 (1974). A
defendant may forfeit his 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
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behavior, he nevertheless insists on conducting himself in a manner so
disorderly, disruptive, and disrespectful of the court that his trial cannot be
carried on with him in the courtroom.” Allen, 397 U.S. at 343; see also Rule
9.2(a) (“A defendant who engages in disruptive conduct, after being
warned that such conduct will result in expulsion from a proceeding,
forfeits the right to be present at that proceeding.”). He can reclaim this
right “as soon as [he] is willing to conduct himself consistently with the
decorum and respect inherent in the concept of courts and judicial
proceedings.” Allen, 397 U.S. at 343; see also Rule 9.2(a) (“At the time of
expulsion, the court must inform the defendant that he or she can return
upon a promise to the court of future orderly conduct.”).
¶18 The court did not abuse its discretion in excluding Sueing
from his trials. In the 2018 case, the record supports the trial court’s
determination that Sueing’s violent, obstreperous, and unpredictable
behavior warranted his removal from the courtroom, and after further
misconduct, from the courthouse entirely. Sueing’s argument that the court
could have done more to understand why he was disruptive in the holding
area adjoining the courtroom—which is largely based on self-serving
statements he made months after those disruptions—does not establish an
abuse of discretion. Nor did Sueing’s promise of “no more disturbances”
entitle him to return to court. Given his recent history of belligerence, the
court did not have to accept his promise of “no more disturbances.” See, e.g.,
Douglas v. State, 214 P.3d 312, 323–24 (Alaska 2009) (interpreting Allen as
allowing a trial court to forbid a defendant’s return to the courtroom based
on its determination that the defendant’s prior conduct undermined the
credibility of his promise to behave); United States v. Munn, 507 F.2d 563,
568 (10th Cir. 1974) (interpreting same). Indeed, Sueing’s insubordinate
conduct while on the stand in the 2018 case discredited his earlier promise
of good behavior.
¶19 Nor did the trial court err in adhering to its earlier rulings on
exclusion when the 2021 case went to trial. Ten weeks elapsed between
Sueing’s trials in the 2018 and 2021 cases. Between the end of trial in the
2018 case—which was punctuated by Sueing’s contumacious behavior on
the stand—and the start of trial in the 2021 case, Sueing never signaled that
he was “willing to conduct himself consistently with the decorum and
respect inherent in the concept of courts and judicial proceedings.” Allen,
397 U.S. at 343. He provided no verbal assurances of future good behavior,
nor did he show, through his conduct, that he could control himself in court
proceedings. Cf. State v. Forte, 222 Ariz. 389, 393 ¶ 10 (App. 2009) (holding
that a defendant’s “disruptive behavior at an earlier hearing was not,
standing alone, a sufficient ground for excluding [the defendant] from [a
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later hearing]” where the defendant demonstrated good behavior at an
intervening hearing that “indicated he was willing to cooperate with the
process”). The mere passage of time and change of case, combined with
defense counsel’s requests that Sueing be allowed to attend trial, did not
require the court to permit his return. Therefore, the court did not violate
Sueing’s constitutional right to be present at his trials.
B. The court complied with Rule 9.2.
¶20 Sueing does not challenge his initial expulsion from the
courtroom under Rule 9.2(a). But he contends that the trial court violated
Rule 9.2(b) and (c) by (1) preventing him from watching the trial virtually
without conducting a more thorough inquiry into his disruption from the
holding area during trial in the 2018 case, (2) denying his request to return
upon a promise not to engage in further disruptive behavior, and (3) not
complying with its “continuing duty” to permit his participation in the trial
proceedings.
¶21 Sueing does not establish error. The trial court did not violate
Rule 9.2(b) or (c). After the defendant’s expulsion, “the court must use every
feasible means to allow the defendant to watch, hear, and be informed of
the proceeding’s progress, and to consult with counsel at reasonable
intervals. The court should inquire periodically if the defendant wishes to
reacquire the right to be present.” Rule 9.2(b). If the defendant “personally
assures the court of future good behavior,” then “[t]he court must allow the
defendant to return to the proceeding.” Rule 9.2(c). But upon later
disruptive conduct, “the court may exclude the defendant from the
proceeding without additional warning.” Rule 9.2(c).
¶22 Here, the trial court “use[d] every feasible means” to allow
Sueing to follow the trial proceedings after expelling him from the
courtroom. First, the court allowed him to watch the proceedings from an
area adjoining the courtroom. Sueing does not dispute that upon receiving
that opportunity, he began banging on the door to the courtroom and told
an officer that he would continue to do so. Rule 9.2(b) did not oblige the
court to inquire further into Sueing’s discontent before expelling him from
the courthouse entirely. And the court continued to comply with its duty
under the rule by investigating whether Sueing could watch the trial from
the jail. Cf. State v. Chapple, 36 P.3d 1025, 1031–32 (Wash. 2001) (holding that
trial court’s refusal to allow the defendant to watch trial from a courtroom-
adjacent area after expelling him for disruptive conduct complied with the
“least restrictive means” requirement where the court had personal
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knowledge of the defendant’s misconduct and potential for violence and
where it had investigated other alternatives).
¶23 Given the short proximity in time between trials in the 2018
and 2021 cases, the relationship of the two cases, and the continuity of
presiding judges in the cases, the court’s efforts to allow Sueing to follow
the trial in the 2018 case also satisfied its duties in the 2021 case. Nothing in
Rule 9.2(b) requires the trial court to disregard a defendant’s prior
misconduct simply because a new trial is at issue.
¶24 The trial court also did not breach the other provisions of Rule
9.2(b). Contrary to Sueing’s assertions, the record shows that Sueing was
able to “consult with counsel at reasonable intervals,” Rule 9.2(b), during
his absence from court in the 2018 case. On the fourth day of trial, defense
counsel referred to having a 40-minute conversation with Sueing the day
before and “talking continuously to [him].” Even if Sueing did not speak
with his attorney during the State’s presentation of evidence in the 2021
case, the court did not violate its obligation to enable such communication.
The phrase “at reasonable intervals” inherently entails some degree of
discretion and consideration of the circumstances. Cf. Seven Springs Ranch,
Inc. v. State ex rel. Ariz. Dep’t of Water Resources, 156 Ariz. 471, 474 (App.
1987) (holding that a statute requiring an official to “give reasonable notice
of [a] hearing appropriate to the circumstances” gave the official discretion
to determine whether actual notice should be used in addition to notice by
publication). Trial in the 2021 case was brief. The State called only two
witnesses—the attorney whom Sueing attacked and an officer who
observed the attack—with the latter examination being particularly short.
The record shows that Sueing spoke with his attorney after the State rested
its case. Under the circumstances, the trial court did not violate Rule 9.2(b)
by not enabling Sueing to speak with his attorney while the State presented
its two witnesses.
¶25 Nor did the trial court violate Rule 9.2(b) by failing to “inquire
periodically if [Sueing] wishe[d] to reacquire the right to be present.” Like
“reasonable intervals,” a “periodic inquiry” inherently entails an exercise
of discretion in consideration of the circumstances. Such inquiry was futile
here. Jury selection and the presentation of evidence in the 2018 case lasted
six days. Sueing refused transport on the first day. He was expelled for
disruptive conduct on the second day. He asked for and was denied the
opportunity to return on the fourth day, and he was present, and again
expelled for disruptive conduct, on the sixth day.
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¶26 The court’s inquiry about Sueing’s potential return on day
three or five of trial would have served no purpose given the timeline of
events. Cf. United States v. Nunez, 877 F.2d 1475, 1478 (10th Cir. 1989)
(holding that Allen did not require the trial court, after the defendant’s
expulsion, to bring him back “at least once a day to ascertain whether he
would promise to behave properly and if he did so promise, [allow him] to
stay in the courtroom unless, and until, his next outbreak, ad infinitum”).
Similarly, the court’s inquiring about Sueing’s return to trial in the 2021 case
would have had no purpose given the brevity of the proceedings in that
matter. Further, Rule 9.2(b)’s “periodic inquiry” instruction may be
interpreted as directory, not mandatory, given its contrasting use of “must”
in the “must use every feasible means” provision. See Manhattan-Dickman
Constr. Co. v. Shawler, 113 Ariz. 549, 555 (1976) (“‘Should’ can be used to
indicate desirability or preference rather than an obligation or mandate.”).
¶27 The trial court also complied with Rule 9.2(c)’s requirement
that it “allow the defendant to return to the proceeding” upon the
defendant’s “personal[ ] assur[ance] . . . of future good behavior.” His
argument suggests that the court should have made an effort “every day”
at trial to reintegrate him. But the court did not err. After the court excluded
Sueing from the courthouse during the 2018 trial, he made just one
overture, through counsel, “promis[ing] no more disturbances.” The court
determined that his avowal did not justify his return, and Sueing’s
subsequent conduct while on the stand confirmed that he could not keep
his promise to behave. Rule 9.2 does not specify whether every promise of
future good behavior, no matter the circumstances, triggers a duty to allow
the defendant’s return. Consistent with decisions affording the trial court
discretion to evaluate the credibility of a defendant’s promise under Illinois
v. Allen, Rule 9.2(c) gives the trial court discretion to determine whether a
defendant’s assurance of future good behavior is credible. The record
supports the court’s finding here that Sueing’s promise was unreliable.
Therefore, the court did not violate Sueing’s constitutional right to be
present.
II. The trial court did not violate Sueing’s right to represent himself.
¶28 The trial court did not violate Sueing’s right to represent
himself. The right to represent oneself is constitutionally protected. State v.
Dann, 220 Ariz. 351, 359 ¶ 16 (2009) (citing U.S. Const. amends. VI, XIV;
Ariz. Const. art. II, § 24); see also Faretta v. California, 422 U.S. 806, 834–36
(1975). But like the right to be present, the right of self-representation is not
absolute. See Indiana v. Edwards, 554 U.S. 164, 171 (2008) (referring to various
limitations on such right). Nor does it “exist in a vacuum.” State v. De Nistor,
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143 Ariz. 407, 412 (1985). By forfeiting his right to attend trial through his
disruptive conduct, Sueing effectively forfeited any right, or possibility, of
self-representation. Cf. Faretta, 422 U.S. at 834 n.46 (“[T]he trial judge may
terminate self-representation by a defendant who deliberately engages in
serious and obstructionist misconduct.”); Delvecchio, 110 Ariz. at 402(finding no error where the trial court allowed advisory counsel to take over
the defense of a self-represented defendant when he was expelled from the
courtroom for disruptive conduct).
¶29 Even if we disregard the impossibility of Sueing representing
himself while being excluded from the courtroom, the trial court did not err
in denying his requests for self-representation. Sueing surrendered the
right to represent himself in the 2018 case after being warned that he would
not be allowed to “flip-flop back.” He then declined to reclaim that right
when the court offered it to him. Under the circumstances, the court did not
abuse its discretion by denying Sueing’s further requests for
self-representation in the 2018 case. See State v. Boggs, 218 Ariz. 325, 338
¶ 62 (2008) (finding no abuse of discretion in the trial court’s denial of the
defendant’s second request for self-representation after the defendant
relinquished such right upon being warned that he would not be allowed
to reclaim it); Dunbar, 249 Ariz. at 46 ¶ 17 (holding that the defendant
“forfeited his right to self-representation through his vacillating positions”
after being warned that the court “was not going to allow him to continually
change his mind”).
¶30 Sueing argues that he did not engage in misconduct when he
represented himself before. But the record supports the trial court’s
findings that allowing Sueing to represent himself in either case could
endanger others and run the risk of him deliberately creating a mistrial. See
De Nistor, 143 Ariz. at 412 (observing that a defendant’s right of
self-representation must be balanced against the government’s right to an
orderly, judicious trial); United States v. Mack, 362 F.3d 597, 601 (9th Cir.
2004) (noting that “the defendant’s right to self-representation [does not]
overcome[] the court’s right to maintain order in the courtroom and
conduct proceedings in a manner consonant with our trial traditions”).
Sueing’s argument that the trial court should have allowed him to represent
himself, rather than be represented by counsel during his exclusion from
the court, is unconvincing because of his disruptive behavior. The court did
not err.
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CONCLUSION
¶31 For the foregoing reasons, we affirm Sueing’s convictions and
sentences in both cases.
AMY M. WOOD • Clerk of the Court
FILED: JT
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