State v. Hampton

SUPREME COURT OF ARIZONA
EN BANC

STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-03-0033-AP
Appellee, )
) Maricopa County Superior
v. ) Court
) No. CR2001-008991
TRACY ALLEN HAMPTON, )
)
Appellant. ) O P I N I O N
)
__________________________________)

Appeal from the Superior Court of Maricopa County
The Honorable John Foreman, Judge

Terry Goddard, Attorney General Phoenix
By: Kent E. Cattani, Chief Counsel
Capital Litigation Section
Attorneys for the Appellee

Tracy Allen Hampton Florence
In Propria Persona

H U R W I T Z, Justice

¶1 Our May 25, 2004, minutes contain an order granting a

motion by the Maricopa County Public Defender’s Office to

withdraw from representation of Appellant Tracy Allen Hampton

(“Hampton” or “defendant”). The minutes indicated that an

opinion would follow. This is that opinion.

I.

¶2 Hampton was convicted of two counts of first degree

murder and one count of manslaughter. He was sentenced to death

for each of the murder convictions and to 12.5 years for the
manslaughter conviction. The convictions and sentences were

appealed to this court, and the superior court appointed the

Office of the Legal Advocate as appellate counsel.

¶3 On August 5, 2003, the Office of the Legal Advocate

filed a motion to withdraw from representing the defendant,

citing an ethical conflict of interest. In response to our

order requesting more detailed information regarding the nature

of the asserted conflict, the Legal Advocate filed a sealed

document supplementing its original motion. In that document, a

deputy legal advocate asserted that the office had received

correspondence from the defendant containing death threats

against his appointed attorneys. The deputy suggested that

because the defendant allegedly has strong ties with the Aryan

Brotherhood, the threats seemed credible. This court granted

the Legal Advocate’s motion to withdraw and remanded the case to

the superior court for appointment of new counsel. The superior

court appointed the Maricopa County Public Defender’s Office.

¶4 On April 19, 2004, the Maricopa County Public

Defender’s Office filed a motion to withdraw. The assigned

deputy public defender cited an irreconcilable conflict of

interest caused by the receipt of a facsimile of a letter

apparently handwritten and signed by Hampton. In response to

this court’s order, a copy of the facsimile was filed under seal

on May 7, 2004, along with a supplemental filing by the Public

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Defender. The facsimile was received on April 19, 2004, and was

accompanied by a cover sheet indicating that it was “from”

Hampton. The facsimile was addressed to the two assigned

counsel in the Public Defender’s Office and demanded their

withdrawal, threatening that if the deputy public defenders

appointed on his behalf did not “remove [them]selves” from

representing Hampton, they would “be dealt with.” The

handwritten facsimile, which bears both Hampton’s name and a

signature following the name that appears to be Hampton’s,

further threatened that continued representation by the public

defenders would “put [their] lives in danger.” The Public

Defender’s supplemental filing represented that defendant’s

sister had called a secretary in the Public Defender’s Office,

confirming that she had sent the facsimile and asking whether it

had been received. The supplemental filing also expressed fear

that the threats in the facsimile were credible, given Hampton’s

alleged gang ties and his apparent ability to direct his sister

to fax the threatening letter.1

1
The court ordered on May 10, 2004, that the sealed
materials filed by the Office of the Legal Advocate and the
Public Defender be unsealed for review by the court and its
professional staff. We today order that these materials be
unsealed for all purposes, including for use by law enforcement
in considering future criminal proceedings. Although the sealed
materials in part derive from alleged communications from
Hampton to counsel, they were appropriately disclosed to this
court. See Ariz. R. Sup. Ct. 42, ER 1.6(b) (“A lawyer shall
reveal such information to the extent the lawyer reasonably

3
¶5 Our minute order disposes of the motion to withdraw.

We write today not only to deal with the future course of

Hampton’s case, but also to provide guidance about the

consequences of threats against appointed counsel. We have

jurisdiction pursuant to Article 6, Section 5(3) of the Arizona

Constitution, and Arizona Revised Statutes (“A.R.S.”) §§ 13-4031

and -4033 (2001).

II.

A.

¶6 This case comes to us on direct appeal pursuant to

A.R.S. § 13-4033. When exercising an appeal as of right, an

indigent criminal defendant is entitled to appointed counsel.

Douglas v. California, 372 U.S. 353, 357-58 (1963). While an

indigent defendant is entitled to effective assistance of

counsel, he has no right to choose the particular attorney who

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believes necessary to prevent the client from committing a
criminal act that the lawyer believes is likely to result in
death or substantial bodily harm.”). It also appears that, with
respect to the facsimile sent to the Public Defender, any
potential privilege may have been waived by disclosure of the
communication to third parties. Ulibarri v. Superior Court, 184
Ariz. 382, 385, 909 P.2d 449, 452 (App. 1995) (finding “limited
waiver . . . because a client waives the [attorney-client]
privilege by disclosing confidential communications to a third
party”); Restatement (Third) of The Law Governing Lawyers § 79
(2000) (“The attorney-client privilege is waived if the client
. . . voluntarily discloses the communication in a nonprivileged
communication.”); id. cmt. g (noting a disclosure is voluntary
even though the client was not “aware that the communication was
privileged,” and did not “specifically intend to waive the
privilege”).

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will represent him. State v. Bible, 175 Ariz. 549, 591, 858

P.2d 1152, 1194 (1993).

¶7 Although a defendant is entitled to counsel for a

direct appeal of a felony conviction, he can effectively forgo

that assistance through his actions. A defendant can

affirmatively waive the right to counsel at trial, as long as

the waiver is knowing, voluntary and intelligent.2 Faretta v.

California, 422 U.S. 806, 835 (1975); State v. Lamar, 205 Ariz.

431, 435-36 ¶ 22, 72 P.3d 831, 835-36 (2003). Even in the

absence of an express waiver, a defendant can implicitly waive

his right to counsel through his conduct. United States v.

Goldberg, 67 F.3d 1092, 1100 (3d Cir. 1995). In some

circumstances, persistent disruptive or dilatory conduct by a

defendant will support a determination that the defendant

“waived” his right to counsel. Id. Such a waiver by conduct

can occur only after a court both warns the defendant that

further disruptive conduct may result in the loss of the right

2
The Supreme Court held in Martinez v. Court of Appeal
of California, 528 U.S. 152, 162 (2000), that a criminal
defendant has no federal constitutional right to proceed without
counsel on direct appeal. We have not been confronted with a
case after Martinez in which a defendant nonetheless seeks to do
so and this case presents no occasion for us to address that
issue.

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to counsel and explains the implications of such a waiver.3 Id.

at 1100-01; Daniel Y. v. Ariz. Dep’t of Econ. Sec., 206 Ariz.

257, 260-61 ¶¶ 15-17, 77 P.3d 55, 58-59 (App. 2003) (noting that

a defendant must first be warned of the consequences of

misconduct and the risks of self-representation before he can be

deemed to have waived his right to counsel by his misconduct);

King v. Superior Court, 132 Cal. Rptr. 2d 585, 592 (Ct. App.

2003) (concluding that implied waiver of counsel by conduct is

possible once the defendant “has been warned that he will lose

his attorney if he engages in dilatory tactics”).

¶8 Case law suggests a third method by which a defendant

can lose his right to counsel. A number of cases suggest that a

defendant can “forfeit” his right to counsel without prior

warning if he engages in severe misconduct or a course of

disruption aimed at thwarting judicial proceedings. Goldberg,

67 F.3d at 1100-01; see also State v. Delvecchio, 110 Ariz. 396,

401, 519 P.2d 1137, 1142 (1974) (noting that a defendant, by his

disruptive behavior, may forfeit his right to be present during

certain criminal proceedings); Daniel Y., 206 Ariz. at 262 ¶ 24,

3
The United States Court of Appeals for the Third
Circuit has suggested that, in accordance with Faretta, courts
should “require an on-the-record colloquy” with the defendant
that includes “an explanation by the [trial] court of the risks
of self-representation.” Goldberg, 67 F.3d at 1099, 1100-01.
We agree. When trial courts are confronted with misconduct
directed toward counsel, they should apprise the defendant, on
the record, of the risks and consequences of waiving the right
to counsel.

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77 P.3d at 60 (recognizing that some jurisdictions have held

that defendants can forfeit the right to counsel). These cases

suggest that forfeiture is reserved for the most severe cases of

misconduct and should result only when less restrictive measures

are inappropriate.4 Gilchrist v. O’Keefe, 260 F.3d 87, 100 (2d

Cir. 2001) (encouraging trial courts to exercise discretion in

taking “intermediate steps short of complete denial of counsel”

before finding a defendant has forfeited his right, but

recognizing forfeiture without warning as a permissible result

in the appropriate case); Goldberg, 67 F.3d at 1102 (refusing to

impose forfeiture of the right to counsel, even when the

defendant’s misconduct was an alleged death threat against his

attorney, when the lower court conducted only an “ex parte

hearing where the defendant’s interests were not represented,”

but acknowledging that forfeiture may be an available sanction

in some circumstances for a defendant’s egregious misconduct);

United States v. McLeod, 53 F.3d 322, 326 (11th Cir. 1995)

(upholding a district court’s determination that a defendant had

forfeited his right to counsel, even though the defendant “was

not warned that his misbehavior might lead to pro se

representation”); United States v. Jennings, 855 F. Supp. 1427,

4
For instance, if a defendant physically assaults his
attorney, a trial court might have the defendant restrained
before removing the defendant’s right to an attorney. Or, the
defendant’s misconduct may provide the basis for charging him
with another crime.

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1445 (D. Pa. 1994) (holding that an indigent defendant lost his

right to counsel, without warning, when he physically assaulted

his court-appointed attorney in open court); King, 132 Cal.

Rptr. 2d at 588, 596 (finding the right to counsel could be

subject to forfeiture if a defendant engaged in a “course of

serious misconduct towards counsel” and when “lesser measures to

control [a] defendant are insufficient to protect counsel and

appointment of successor counsel is futile,” but noting that

“only in those rare cases of extremely serious misconduct

towards counsel where it is apparent that any lesser measures

will be patently inadequate to protect counsel may the right to

counsel be forfeited in the first instance” without a warning).

B.

¶9 The defendant in this case has not expressly waived

his right to counsel. Neither does it appear that any court has

warned him that continued misconduct will result in an implied

waiver of his right to counsel. Although it might be possible

to conclude Hampton’s conduct is so egregious as to constitute a

forfeiture of his right to counsel on appeal, we do not today so

hold.5 Rather, we choose to remand this case to the superior

court with instructions to appoint new appellate counsel.6

5
Because both motions to withdraw were filed in this
court and granted without a remand for any factual findings, the
facts recited above come entirely from the two motions and

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¶10 At the time it appoints new counsel, the superior

court should also take appropriate measures to warn Hampton of

the potential consequences of any future misconduct. We take

this occasion, however, to expressly warn the defendant that any

future misconduct can be deemed a waiver of his right to counsel

and may result in him being forced to represent himself in his

capital appeal. Hampton should be aware that proceeding without

counsel in a capital appeal will be extraordinarily difficult.

In many respects, this appeal may be the defendant’s last

meaningful opportunity to challenge his convictions and death

sentence. If he represents himself, Hampton will be required to

examine the record of his criminal case, identify constitutional

or other infirmities in the criminal proceedings against him,

and make complex legal arguments to this court. Without the

assistance of counsel, the obstacles to success may well be

insurmountable.

¶11 Although what we have stated above disposes of

Hampton’s case, we wish to make plain that courts will not and

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associated filings. Our disposition of this matter today makes
unnecessary a remand for such findings.
6
The threats in this case occurred after the notice of
appeal was filed, and counsel therefore properly brought their
motions to withdraw in this court. When such actions are
alleged to have occurred while an action is still pending in
superior court, any motions by counsel should be directed to the
trial judge, who can hold appropriate evidentiary hearings when
necessary.

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should not tolerate threats to counsel. While we leave open

today the question of whether certain serious misconduct by a

criminal defendant can result in forfeiture of the right to

counsel without prior warning, it should be clear to all that

conduct of the sort alleged in this case has extremely serious

potential consequences with respect to future representation by

appointed counsel. Our system of justice cannot function if

dedicated defense counsel face threats of physical violence for

doing their jobs and we will not tolerate such threats.

III.

¶12 This case is remanded to the superior court for

further proceedings consistent with this opinion.

Andrew D. Hurwitz, Justice

CONCURRING:

_
Charles E. Jones, Chief Justice

______
Ruth V. McGregor, Vice Chief Justice

_
Rebecca White Berch, Justice

_
Michael D. Ryan, Justice

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