dissenting. How many times may a defendant misbehave at his or her jury trial before a trial judge may remove the defendant from the courtroom? How many times must a trial judge accept a defendant’s false promises that he or she will not disrupt trial proceedings before the trial judge has the discretion to no longer believe the defendant’s assertions? Where a defendant has evidenced past violent behavior, and on the day of trial states that he might get violent, is this conduct sufficient to permit the trial judge to exclude the defendant from the courtroom? In my view, Goston’s repeated, false promises and disruptive and violent behavior were clearly sufficient to allow the trial judge to remove Goston from his jury trial.
The majority opinion correcdy discusses the governing case law in considering a trial judge’s alternatives when confronted with a disruptive, misbehaving defendant, but it glosses over Gos-ton’s recurring misbehavior, which the trial judge relied upon in exercising his discretion to exclude Goston from the trial proceedings. Instead, the majority largely recounts Goston’s assurances to the trial judge at the June 6, 1995 trial that (1) he was capable of conducting himself like a proper young man; (2) he wanted to assist his counsel during trial; and (3) he was not violent and posed no threat to anyone in the courtroom. In rejecting Goston’s assurances as false promises, the trial judge listed Goston’s prior actions the judge believed subverted any assurances Goston made at his June 6, 1995 trial.
In exercising his discretion to remove Goston from the courtroom on June 6, the trial judge found that, within the past sixty days, Goston had in three other trial proceedings (1) refused to walk on his own and had to be carried into the courtroom; (2) had laid on a table and refused to participate in a prior trial proceeding; (3) had cursed defense counsel during voir dire of the jury and also threatened his attorney. At the last trial proceeding before the trial judge, the judge, after being assured by Goston that he would behave, had Goston’s shackles and handcuffs removed; nonetheless, Goston afterwards cursed the jury, and caused the judge to call a mistrial and to release forty called jurors and ten witnesses. It is also significant that the trial judge had knowledge that Goston had caused another mistrial only days before, during another jury trial before a different judge. There, Goston had been belligerent, used grossly inappropriate language and profanity toward the judge, threatened to kick over a table and proclaimed, “We are going to fight up in here.” See Goston v. State, 55 Ark. App. 17, 930 S.W.2d 800 (1996).
Goston continued his insolent and disruptive behavior at a pretrial hearing before his June 6, 1995 trial, and while the majority characterizes his actions as “calm and respectful,” I leave that to you, the reader, to decide. For example, at the same time Goston was reassuring the judge at pretrial that he would conduct himself appropriately at trial, Goston exhibited disrespect and argued with the judge throughout the hearing. Goston refused to cooperate or communicate with his counsel, and tried to fire him immediately prior to trial. What better way, I ask, can a defendant disrupt or halt his proceeding? Goston further accused his counsel of falsifying records, and claimed he would not communicate with his attorney because Goston’s “mind was telling [him] that all white people are devils.” Goston argued with the judge, stating he was a member of a gang and “. . . the same things you think about gangs is the same thing we think about you and the police . . . .” Goston further told the judge that, while he posed no threat to the jury or any person in the court, “I might get violent in effect.”
At this point, I mention the majority’s suggestion that the trial judge never considered or relied on how Goston acted at his pretrial hearing when the judge ruled Goston should be excluded from the courtroom. Such a suggestion wholly ignores the record and what took place at the hearing. Obviously, the judge saw and heard first hand Goston’s hostile remarks and threats, and it is sophomoric to think the judge failed to take Goston’s actions and enmities into consideration when barring him from the courtroom. Even if the trial judge failed to repeat every action Goston took towards disrupting another trial, our court can readily go to the record to support why the judge ruled as he did.
From Goston’s prior misbehavior and the misconduct he exhibited at the June 6 pretrial proceeding, the judge simply did not believe Goston would conduct himself appropriately at trial. Goston is no newcomer to the justice system; he had twenty criminal charges pending against him at the time of trial, and he had attended a number of hearings and trials. Ten of those charges involved violent crimes such as aggravated robbery and aggravated assault. This case, in fact, involved his having struck a police officer, causing the officer to have surgery on his nose. Based upon Goston’s past and present obstreperous behavior, the trial judge had every right to disbelieve Goston’s assertions that he would behave, and believe his empty promises would assuredly result in a third mistrial. Based upon Goston’s own words, the trial court could have reasonably expected Goston to be violent.
In conclusion, the principle is settled that a court should vigilantly protect a defendant’s constitutional rights, but it was never intended that any of these rights be used as a ploy to frustrate the orderly procedures of a court in the administration of justice. U.S. v. Nunez, 877 F.2d 1495 (10th Cir. 1989); see also Scurr v. Moore, 647 F.2d 854 (8th Cir. 1981). And while it has been stated that, once a defendant’s confrontation right has been lost through misconduct, it may be regained as soon as the defendant is willing to conduct himself consistently with decorum and respect, Illinois v. Allen, 397 U.S. 337 (1970), such statement is not intended as an absolute mandate dictating the return of every defendant who has been removed from the courtroom simply on his verbal promise to reform. United States v. Munn, 507 F.2d 563 (10th Cir. 1974). As pointed out in Munn, prior conduct may indicate such a promise is of little value, and some discretion is still left with a trial court to pass upon the sincerity of a defendant’s recantation. The Scurr court stated the trial court’s duty in such matters in these following terms:
Removal should be limited to cases urgently demanding that action, but the balancing of the defendant’s confrontation right with the need for the proper administration of justice is a task uniquely suited to the trial judge. Sufficient discretion must be granted to meet the circumstances of each case. (Emphasis added.)
In the present case, the trial judge was not required to wait for Goston to act on the violence he voluntarily announced he might commit during trial. Nor was the judge required to observe Goston commit further defiant and disruptive actions in front of the jury before he could exclude Goston from the courtroom. To do so would have predictably resulted in another mistrial. Plus, considering Goston’s violent history and threats, someone likely would have been injured, if the judge had failed to exclude Goston.
If Goston had truly repented of his past acts of misconduct and had shown a sincere willingness to behave at trial, the trial court would have been obliged to allow Goston to be present at trial. Instead, Goston manifested his continued contempt and hostility toward the trial court and his attorney.
In my view, the trial judge’s decision to exclude Goston from the courtroom was the only reasonable choice to ensure that the orderly administration of justice could be achieved. The Sixth Amendment right of confrontation does not stand as a shield to protect the accused from his own misconduct or chicanery. Diaz v. United States, 223 U.S. 442 (1912); United States v. Carlson, 547 F.2d 1346 (1976). Accordingly, I would uphold the trial judge’s rulings and affirm Goston’s conviction.
In its closing paragraph, the majority opinion states that the majority is unaware of any case “where a defendant was permissibly excluded from his entire trial, without being informed of the trial’s progress or afforded an opportunity to return, based solely on his prior conduct in other matters.” I reiterate — Goston had already caused a mistrial in his jury trial before this judge. As has been well stated by the Eighth Circuit Court of Appeals in Scurr, the removal of an obstreperous defendant from the courtroom requires no “formalistic sequence of warnings,” nor is it necessary for more than one warning to be given. Scurr, at 858. The Scurr court further held that, while it is desirable for a trial judge to give the defendant an assurance that he can return to the courtroom if he behaves properly, such procedure is not an absolute requirement. Id.
As noted above, Goston showed no remorse for his past misconduct, and instead continued his show of hatred and hostility towards the judicial process. The trial judge not only acted prudently when removing Goston from the proceedings, he likely prevented Goston from acting on his threats to commit violence against his attorney or others present in the courtroom.
Arnold, C.J., and Corbin, J., join in this dissent.