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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

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,

,

(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,

,

(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,

(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,

, 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,

(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,

,

.

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,

. 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,

,

(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.

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,

,

(1994) (citing Scott v. Illinois,

(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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