                 IN THE SUPREME COURT OF THE STATE OF IDAHO

                                        Docket No. 34192

                                       )
STATE OF IDAHO,                        )
                                       )
                                                              Boise, January 2009 Term
                 Plaintiff-Respondent, )
                                       )
                                                              2009 Opinion No. 94
v.                                     )
                                       )
                                                              Filed: July 8, 2009
JUAN CARLOS FUENTES PINA,              )
                                       )
                                                              Stephen W. Kenyon, Clerk
                Defendant-Appellant. )
                                       )
                                       )

       Appeal from the district court of the Fifth Judicial District, State of Idaho, Twin
       Falls County. Hon. G. Richard Bevan, District Judge.

       Appellant‟s conviction is vacated and this case is remanded to the district court
       for a new trial.

       Molly J. Huskey, State Appellate Public Defender, Boise, for appellant. Sara
       Thomas argued.

       Hon. Lawrence G. Wasden, Attorney General, Boise for respondent.                Ken
       Jorgensen argued.
                       ______________________________________
W. JONES, Justice
                                     I. NATURE OF CASE
       Appellant Juan Carlos Fuentes-Pina (Pina) appeals from his conviction of first degree
felony murder following the shooting death of Jesse Naranjo by Johnny Shores. Pina raises three
issues on appeal: 1) whether the district court erred in applying the proximate cause rather than
the agency theory of felony murder, 2) whether the district court erred in instructing the jury that
Pina could be convicted of felony murder if “during the commission or attempted commission of
the kidnapping, Jesse Naranjo was killed,” and 3) whether the district court erred in denying
Pina‟s mid-trial motion to proceed pro se. Because we agree that the district court incorrectly




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applied Idaho‟s felony murder rule and incorrectly instructed the jury, we vacate Pina‟s
conviction.
                   II. FACTUAL AND PROCEDURAL BACKGROUND
       On November 29, 2005, Jesse Naranjo (Naranjo) was shot by Johnny Shores (Shores)
following a dispute between Naranjo and Pina. The argument between Pina and Naranjo first
started outside of the house when Naranjo arrived. According to a witness, when Naranjo exited
his car, the two men exchanged words before Pina put his hands in his pockets and followed
Naranjo into the house, with Naranjo repeatedly looking back at Pina. The witness speculated
Pina had a gun in his hand inside the pocket at this time. Once inside, Naranjo and Pina
continued to argue and Pina motioned to the floor, making Naranjo get on his knees.
       Shores and his girlfriend were asleep in a nearby room when they were awakened by the
argument between Pina and Naranjo. When they opened the door to see what was happening
they observed Pina standing in front of the kneeling Naranjo, holding a shotgun, and speaking in
an angry tone. Shores walked around Naranjo and approached Pina. As the two spoke, Pina
motioned at Naranjo and then at Shores‟ feet, after which Naranjo bent down and kissed Shores‟
foot. According to Shores, he “[n]udged [Naranjo] and told him to get up,” and then told Pina to
give him the gun. However, another witness testified that after Naranjo kissed Shores‟ feet,
Shores “kicked [Naranjo] in the face . . . .” According to Shores, Pina responded to Shores‟
request for the gun by stating, “No. F--- this fool.” Shores continued to encourage Pina to give
him the gun and Pina finally relented.
       As Pina handed the gun to Shores, Naranjo jumped off his knees and grabbed the gun.
The three men wrestled for control and Shores ultimately seized the gun. Pina and Naranjo
continued to fight. Naranjo ran to the back of the house and tried to get through the back door,
but Pina slammed the door on him. Shores followed behind them and at some point fired the
gun.
       Shores later stated he was “scared and panicked and didn‟t know what to do, and [he] just
fired the gun.” He said he did not think he had intended to fire the gun: “I don‟t know. I don‟t
think—it‟s just like a reaction. I don‟t know. I was just scared. It just happened . . . I wasn‟t
aiming.” He also said it was more of a “warning shot.” Naranjo was shot on the left side of his
abdomen, and bled to death. Shores pled guilty to voluntary manslaughter for the death of
Naranjo.



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        A grand jury indicted Pina on the charge of “felony murder,” with the indictment alleging
he was liable for Naranjo‟s death because he:
        [D]id wilfully [sic], unlawfully, and deliberately kidnap Jesse Naranjo by seizing
        and/or confining Jesse Naranjo with intent to cause him without authority of law
        to be kept and/or detained against his will and that during the course of that
        kidnapping, Jesse Naranjo, a human being, was unlawfully killed, to-wit: Jesse
        Naranjo was shot in the abdomen with a shotgun, from which he died, in violation
        of Idaho Code Section 18-4001, 18-4003(d).
Upon completion of the presentation of the State‟s case-in-chief, counsel for Pina moved,
pursuant to Idaho Criminal Rule 29, for dismissal. Counsel asserted that the State had failed to
present a prima facie case of felony murder because it presented no evidence indicating that the
death resulted from any type of common plan or design between Pina and Shores. The State
objected but acknowledged, “We don‟t assert that Mr. Shores was in on the plan, whatever there
was, to kidnap, for whatever purposes, Mr. Naranjo at the time that Mr. Pina brought him into
the house.” Instead, the State asserted, “once Mr. Shores was activated, he was clearly not on the
side of Jesse Naranjo. He was acting with Mr. Pina against Mr. Naranjo . . . .”
        The district court denied the I.C.R. 29 motion, finding that “any killing committed in the
perpetration of or attempt to perpetrate a kidnapping is murder of the first degree. Now, the
question for the jury is whether this killing did in fact occur during the perpetration or attempt to
perpetrate the kidnapping.” The court then adopted a “stream-of-events” theory of felony
murder, finding that:
        [T]he Idaho Code is very clear in that regard, and if the killing occurs, it does not,
        our statute does not require a killing to be by the person who initiated the
        kidnapping and indeed is silent as to that effect. I believe that silence leaves for
        this court to view this matter, not narrowly under the agency theory, but rather the
        decision for the jury whether the stream of events is such that this defendant
        should be held liable for the felony murder of Mr. Naranjo.
Defense counsel renewed the I.C.R. 29 motion during its case-in-chief, and the court again
denied it, applying the “stream-of-events concept set forth previously and under the notion of
felony murder in this case . . . .”
        On the last day of the trial, as defense counsel conferred with Pina during the lunch hour,
he took off his civilian clothing, demanded his jail clothing, and then refused to return to the
courtroom. According to the deputy, Pina stated: “F--- you. I‟m not going to court. Just give
me my 3X jumpsuit, it‟s a mistrial, I want a new attorney.” The court gave counsel the
opportunity to meet again with Pina and “to tell him that the court is ordering him to appear.”


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Counsel returned after a short time and stated, “I visited with Mr. Pina in the jail, along with [co-
counsel]. Mr. Pina declined to speak to us. I advised him of the court‟s order, and he indicated
that he did not want to come to court.” Based upon his failure to return, the court found Pina had
“purposely” waived his “right and obligation to be here.”
       The deputy then reentered the courtroom and stated to the court: “I‟ve been informed by
the jail that he will attend and come up only if he can grab his papers and represent himself at
this point.” The court took a recess to consider the issue and then made an initial statement that
it believed it needed to conduct an inquiry under Faretta v. California, 422 U.S. 806 (1975). The
State then argued that the request for self-representation could be denied as having been untimely
brought under State v. Reber, 138 Idaho 275, 61 P.3d 632 (Ct. App. 2002). After considering
that case, the district court agreed with the State and denied Pina‟s request because it was
untimely. The deputy relayed this ruling to Pina and returned to the court to report:
       I went down with the instruction that we would bring him back up, and I was
       informed by Sergeant Kinyon that, to inform him, that he would not be allowed to
       represent himself—represent himself. He was about halfway up the hall. He said,
       and I quote, “F--- you then, I ain‟t going.” And I put—I asked him if he‟d just
       step in holding five for a minute so I could inform you, and he said, “Fine,” and
       he sits in there and refuses to go any further.
Thereafter, the trial commenced without Pina. No further witnesses were called, defense counsel
rested and the State called no rebuttal witnesses. Following a recess, Pina returned to the
courtroom for closing arguments.
       At the jury instruction conference on June 29, 2006, defense counsel again renewed
argument on the issue of insufficient evidence of agency and requested that the jury be instructed
that Shores and Pina must have acted in concert with one another for Pina to be found guilty of
felony murder. The district court declined to give the requested instructions on agency and
instead gave the following instruction:
       In order for the defendant to be guilty of Felony Murder in the First Degree, the
       state must prove each of the following:
           1. On or about November 29, 2005,
           2. in the State of Idaho,
           3. the defendant Juan Carlos Fuentes-Pina, A.K.A. Juan Pina, A.K.A. Juan
              Carlos Pina, kidnapped, or attempted to kidnap Jesse Naranjo, and
           4. during the commission or attempted commission of the kidnapping, Jesse
              Naranjo was killed.


                                                                                                   4
       If any of the above has not been proven beyond a reasonable doubt, you must find
       the defendant not guilty. If each of the above has been proven beyond a
       reasonable doubt, then you must find the defendant guilty.

Based on this instruction, the jury returned a verdict of guilty of first degree felony murder. Pina
timely filed his appeal from the Judgment of Conviction.
                                          III. ANALYSIS
       Pina argues that he was denied due process of law, as guaranteed by the Fourteenth
Amendment of the United States Constitution, when he was convicted absent proof beyond a
reasonable doubt of every fact necessary to constitute the crime of felony murder. In support of
this proposition, he contends that Idaho follows the common law rule of felony murder, which
requires a finding that Pina was acting in concert with Shores or in furtherance of a common
object or purpose at the time Shores killed Naranjo. Pina further asserts that the district court
erred in giving jury instructions that allowed the jury to convict him of felony murder under a
strict liability theory. Finally, Pina contends that the court erred in denying his mid-trial motion
to proceed pro se.
                     A. Idaho applies the agency theory of the felony murder rule.
       Pina argues that he was wrongly convicted because the district court improperly applied
the proximate cause rather than the agency theory of felony murder. This issue requires us to
interpret the statutory language of Idaho‟s felony murder rule, which is rooted in common law.
               When interpreting a statute, this Court must strive to give force and effect
       to the legislature‟s intent in passing the statute. It must begin with the literal
       words of the statute; those words must be given their plain, usual, and ordinary
       meaning; and the statute must be construed as a whole. Where the language of a
       statute is plain and unambiguous, this Court must give effect to the statute as
       written, without engaging in statutory construction. When engaging in statutory
       construction, this Court has a duty to ascertain the legislative intent, and give
       effect to that intent. The Court must construe a statute as a whole, and consider
       all sections of applicable statutes together to determine the intent of the
       legislature. The Court also must take account of all other matters such as the
       reasonableness of the proposed interpretations and the policy behind the statute.

Wheeler v. Idaho Dept. of Health & Welfare, 147 Idaho 257, __, 207 P.3d 988, 994 (2009)
(internal citations and quotations omitted). Once the legislature has chosen to act in an area of
the common law and codify a common law rule, adopting only a portion of a common law rule,
it is to be presumed that the legislature limited its adoption for a reason. See Elec. Wholesale



                                                                                                  5
Supply Co., Inc. v. Nielson, 136 Idaho 814, 825, 41 P.3d 242, 253 (2001); see also Ultrawall, Inc.
v. Washington Mut. Bank, FSB, 135 Idaho 832, 836, 25 P.3d 855, 859 (2001) (“The Court must
assume that when the statute was amended, the legislature had full knowledge of the existing
judicial decisions and caselaw of the state.”); Hook v. Horner, 95 Idaho 657, 661, 517 P.2d 554,
558 (1973) (“Rules of common law are in effect in Idaho only to the extent that they are not
repugnant or inconsistent with legislative enactment.”); State v. Mubita, 145 Idaho 925, 940, 188
P.3d 867, 882 (2008) (“Unless the result is palpably absurd, this Court assumes the legislature
meant what is clearly stated in the statute.”).
        The felony murder rule has incited much controversy and debate among legal scholars
over the proper scope and application of the rule.1 There are two theories of felony murder in the
United States, including agency and proximate cause.                   See Leonard Birdsong, The Felony
Murder Doctrine Revisited: A Proposal for Calibrating Punishment that Reaffirms the Sanctity
of Human Life of Co-Felons Who Are Victims, 33 OHIO N.U. L. REV. 497, 499 (2007). Under the
agency theory, the felony murder rule is only applied to actors who are acting in concert in
furtherance of a common plan or scheme to hold each liable for a death that occurs during the
perpetration of a felony, regardless of who actually fired the fatal shot. 2 Under the proximate
cause theory, each actor is held responsible for the death of a person caused during the
perpetration of a felony on the basis of reasonable foreseeability that the acts committed might
reasonably be expected to result in death.3 Under some interpretations of the proximate cause
theory, one involved in the perpetration of a felony can be held liable for a death occurring
during the perpetration of the felony even though the death was actually caused by a third person
having nothing to do with the perpetration of the felony. See State v. Oimen, 516 N.W.2d 399,
404 (Wis. 1994) (upholding conviction under the felony murder rule when intended victim of the

1
  In the United States today, at least three states have abolished felony murder, including Hawaii, Kentucky and
Michigan. See Martin Lijtmaer, The Felony Murder Rule in Illinois: The Injustice of the Proximate Cause Theory
Explored Via Research in Cognitive Psychology, 98 J. CRIM. L. & CRIMINOLOGY 621, 626 (2008).
2
  A majority of states have adopted the agency theory of the felony murder rule. See, e.g., Weick v. State, 420 A.2d
159, 161-62 (Del. 1980); State v. Garner, 115 So.2d 855, 861-64 (La. 1959); Campbell v. State, 444 A.2d 1034,
1037 (Md. 1982); Commonwealth v. Balliro, 209 N.E.2d 308, 313 (Mass. 1965); State v. Rust, 250 N.W.2d 867, 875
(Neb. 1977); Clark County Sheriff v. Hicks, 506 P.2d 766, 768 (Nev. 1973); Jackson v. State, 589 P.2d 1052 (N.M.
1979); State v. Oxendine, 122 S.E. 568, 570 (N.C. 1924); State v. Jones, 859 P.2d 514, 515 (Okla. Crim. App.
1993); Commonwealth v. Redline, 137 A.2d 472, 482-83 (Pa. 1958); State v. Severs, 759 S.W.2d 935, 938 (Tenn.
Crim. App. 1988); Wooden v. Commonwealth, 284 S.E.2d 811, 816 (Va. 1981).
3
  A minority of states have adopted the proximate cause theory of the felony murder rule. See, e.g., State v. Lopez,
845 P.2d 478, 482 (Ariz. Ct. App. 1992); Mikenas v. State, 367 So.2d 606, 608 (Fla. 1978); People v. Dekens, 695
N.E.2d 474, 475 (Ill. 1998); Sheckles v. State, 684 N.E.2d 201, 205 (Ind. Ct. App. 1997); State v. Baker, 607 S.W.2d
153, 156 (Mo. 1980); People v. Hernandez, 624 N.E.2d 661, 665 (N.Y. 1993).


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underlying felony killed co-felon); People v. Lowery, 687 N.E.2d 973, 976 (Ill. 1997) (applying a
broad interpretation of the felony murder rule to uphold conviction for felony murder where the
intended victim of the armed robbery resisted and accidentally killed an innocent bystander).
         The felony murder rule originally went unchallenged because when it was enacted
practically all felonies were punishable by death. People v. Aaron, 299 N.W.2d 304, 310 (Mich.
1980). It was, therefore, “of no particular moment whether the condemned was hanged for the
initial felony or for the death accidentally resulting from the felony.” Id. at 310-311 (citing
Redline, 137 A.2d at 476). Over the course of years, common law expanded to include within
the felony murder rule a second element that imputed responsibility for a homicide that occurred
during the perpetration or attempt to perpetrate certain felonies to any person participating in the
underlying felony. See THE HISTORY OF THE PLEAS OF THE CROWN, 1 Hale 443 (1736) (noting
that as to the culpability of one person for another‟s felonious acts, “the books in all the instances
of this nature say, that it is murder or manslaughter in that party, that abetted him . . . and
consented to the act.”) (emphasis added); R. v. Bosworth, 99 E.R. 138-39 (1779) (holding that
the felony murder rule is only properly applied where, at the instant the crime was committed,
the charged perpetrators “were all of the same party, and upon the same pursuit, and under the
same engagement and expectation of mutual defense and support with those that did the
[crime].”); A TREATISE OF THE PLEAS OF THE CROWN, 1 East 255, 259 (1803) (“In order to make
the killing, by any, murder in all of those who are confederated together for an unlawful
purpose, merely on account of the unlawful act done or in contemplation, it must happen during
the actual strife or endeavor, or at least within such a reasonable time afterwards as may leave it
probable that no fresh provocation intervened.”) (emphasis added).4
         It was within this historical context that the legislature first codified, in 1864, what is now
considered the Idaho felony murder rule.5 The statute stated in relevant part: “All murder which
shall . . . be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or
burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be
deemed murder of the second degree . . . .” Cr. & P. 1864 § 17. Since 1864, the legislature has


4
  The felony murder doctrine was “continuously modified and restricted in England, the country of its birth, until its
ultimate rejection by Parliament in 1957.” Aaron, 299 N.W.2d at 310-11.
5
  There is no statute in Idaho that is titled “felony murder” or any version thereof. Rather, what has come to be
known as the “felony murder rule” in Idaho is codified in the Homicide chapter of the Idaho Code in a section titled
“Degrees of murder.” See I.C. § 18-4003(d).


                                                                                                                    7
amended the statute ten times, but the substance has remained relatively unchanged. 6 The
current version was adopted in 2002 and it states: “Any murder committed in the perpetration of,
or attempt to perpetrate, aggravated battery on a child under twelve (12) years of age, arson,
rape, robbery, burglary, kidnapping or mayhem, or an act of terrorism, as defined in section 18-
8102, Idaho Code, or the use of a weapon of mass destruction, biological weapon or chemical
weapon, is murder of the first degree.” I.C. § 18-4003(d).
         Under a statutory analysis construction, it is clear and unambiguous that the sole purpose
of the felony murder rule as adopted by the Idaho legislature was to raise the degree of killing
from second degree murder to murder of the first degree solely due to the death occurring during
perpetration of the enumerated felonies. See I.C. § 18-4003(d). There is not currently, nor has
there ever been, any mention in I.C. § 18-4003(d) of imputation of responsibility for a killing
from the actual murderer to any person who was not a co-conspirator in the underlying felony.
When the legislature codified only a portion of the common law felony murder rule, it impliedly
determined that only the actual killer, or one acting jointly and in concert with the actual killer
for a common purpose, may be held responsible for a killing under the felony murder rule. We
will not intrude upon that legislative decision by expanding the common law rule beyond what
the legislature in its wisdom chose. If the legislature chooses to expand the scope of the felony
murder rule, it, rather than this Court, should do so.

6
  See R.S., R.C., & C.L. § 6562 (1908) (“All murder . . . which is committed in the perpetration of, or attempt to
perpetrate, arson, rape, robbery, burglary, or mayhem, is murder of the first degree. All other kinds of murder are of
the second degree.”); C.S. § 8211 (1919) (“All murder . . . which is committed in the perpetration of, or attempt to
perpetrate arson, rape, robbery, burglary or mayhem, is murder of the first degree. All other kinds of murder are of
the second degree.”); I.C.A. § 17-1103 (1932) (“All murder . . . which is committed in the perpetration of, or attempt
to perpetrate arson, rape, robbery, burglary or mayhem, is murder of the first degree. All other kinds of murder are
of the second degree.”); Act of February 16, 1935, ch. 24, 1935 Idaho Sess. Laws 41 (“All murder . . . which is
committed in the perpetration of, or attempt to perpetrate arson, rape, robbery, burglary, kidnapping or mayhem, is
murder of the first degree. All other kinds of murder are of the second degree.”) (emphasis in original); Act of
March 25, 1969, ch. 248, 1969 Idaho Sess. Laws 773 (adding provision defining any murder of any peace officer
acting in the line of duty as first degree murder); Act of March 18, 1971, ch. 143, 1971 Idaho Sess. Laws 630, 676
(1971) (completely revising the criminal code by adopting most of the Model Penal Code); Act of March 27, 1972,
ch. 336, 1972 Idaho Sess. Laws 844, 928 (repealing the 1971 criminal code revisions and reenacting the prior code,
including the felony murder rule: “All murder . . . which is committed in the perpetration of, or attempt to perpetrate
arson, rape, robbery, burglary, kidnapping or mayhem, is murder of the first degree.”); Act of March 28, 1977, ch.
154, 1977 Idaho Sess. Laws 390, 391 (“Any murder committed in the perpetration of, or attempt to perpetrate,
arson, rape, robbery, burglary, kidnapping or mayhem, is murder of the first degree.”); Act of April 2, 1991, ch. 227,
1991 Idaho Sess. Laws 547 (“Any murder committed in the perpetration of, or attempt to perpetrate, aggravated
battery on a child under twelve (12) years of age, arson, rape, robbery, burglary, kidnapping or mayhem, is murder
of the first degree.”); Act of March 22, 2002, ch. 222, 2002 Idaho Sess. Laws 623, 627 (“Any murder committed in
the perpetration of, or attempt to perpetrate, aggravated battery on a child under twelve (12) years of age, arson,
rape, robbery, burglary, kidnapping or mayhem, or an act of terrorism, as defined in section 18-8102, Idaho Code, or
the use of a weapon of mass destruction, biological weapon or chemical weapon, is murder of the first degree.”).


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       Moreover, our careful review of the felony murder rule in Idaho has shown that there has
never been a felony murder case before this Court or the Court of Appeals that resulted in a
person involved in the commission of a felony being held responsible for a killing caused by a
third person not involved in the underlying felony. Nonetheless, the district court interpreted the
felony murder rule in Pina‟s case as follows:
       [I.C. § 18-4003(d)] does not require a killing to be by the person who initiated the
       kidnapping and indeed is silent as to that effect. I believe that silence leaves for
       this court to view this matter, not narrowly under the agency theory, but rather the
       decision for the jury whether the stream of events is such that this defendant
       should be held liable for the felony murder of Mr. Naranjo.

(Emphasis added). In so stating, the district court attempted to impermissibly broaden the felony
murder rule by relying on the “stream of events” concept that has been mentioned in prior felony
murder cases. For example, in State v. Hokenson, 96 Idaho 283, 284, 527 P.2d 487, 488 (1974),
this Court used the “stream of events” language when “Hokenson, armed with a homemade
bomb and a knife, entered Dean‟s Drug Center, Lewiston, on the evening of January 13, 1972
with the intent to commit robbery. The resulting course of events ended with the death of Officer
Ross D. Flavel.” (Emphasis added). This Court applied Idaho‟s felony murder rule such that the
killing that occurred during the attempt to commit the robbery was charged as murder in the first
degree. The rule was applied in that case only for the purpose of raising the seriousness of the
crime from murder in the second degree, manslaughter, or some other form of responsibility, to
murder in the first degree. Thus, in Hokenson this Court applied the felony murder rule in its
most basic original form at common law.
       In State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985), this Court applied the felony
murder rule to a death that occurred during the perpetration of a burglary. This Court, using the
language from Hokenson, stated that “the victim‟s “death was part of a stream of events which
began the evening Fetterly and Windsor entered [the victim‟s] home and ended the following day
when [the victim‟s] possessions were removed from the home.” Id. at 771-72, 710 P.2d at 1207-
08 (emphasis added). Fetterly and his girlfriend, Karla Windsor, were charged with the murder
of Sterling Grammer in the first degree because the killing occurred during the commission of a
burglary by Fetterly and Windsor acting in concert for the common purpose of committing the
burglary. Although the Court used the phrase “stream of events,” it did not adopt the proximate
cause theory of felony murder. Rather, this Court recognized that there were two accomplices



                                                                                                 9
who were both involved in the common plan or scheme to burglarize the residence. The felony
murder rule on an agency theory was properly applied in that case because both accomplices
were involved in carrying out the underlying felony. Even though the “stream of events”
language has been used to impute responsibility for a killing from the actual killer to a co-
conspirator in the underlying felony, no Idaho case has ever used the felony murder rule to
impute responsibility for a killing from the actual killer who is not involved in perpetration of the
underlying felony to an individual perpetrating such felony. It was error for the district court to
do so in Pina‟s case.
       Additionally, this Court indicated in State v. Scroggins, 110 Idaho 380, 386, 716 P.2d
1152, 1158 (1985), that Idaho‟s felony murder rule requires a finding that each participant had
the specific intent to commit the underlying felony: “In a prosecution for felony murder, the state
is relieved of the burden of proving that a defendant had the specific intent to kill and instead
need only prove that all individuals charged as principals had the specific intent to commit the
predicate felony.” (emphasis added).
       Up to this point, neither the legislature, nor the judiciary, has ever applied the proximate
cause theory of the felony murder rule in Idaho. As we stated above, when the legislature
codified only a portion of the common law felony murder rule, it impliedly determined that only
the actual killer, or one acting jointly and in concert with the actual killer for a common purpose,
may be held responsible for a killing under the felony murder rule. Thus, we hold that Idaho
applies the agency theory of the felony murder rule. Any change of that rule lies in the province
of the legislature. There was no basis in law to support the district court‟s decision to apply the
proximate cause theory of the felony murder rule in Pina‟s case.
                        B. The jury instructions given by the district court constitute reversible
                           error.
       Pina next argues that the district court erred when it gave jury instructions that allowed
the jury to convict Pina under what amounts to a strict liability theory. “The propriety of jury
instructions is a question of law over which this Court exercises free review.” State v. Young,
138 Idaho 370, 372, 64 P.3d 296, 298 (2002). “When reviewing jury instructions, this Court
must first ask whether the instructions as a whole, and not individually, fairly and accurately
reflect the applicable law. To be reversible error, instructions must have misled the jury or
prejudiced the complaining party.” Id. (citations omitted).



                                                                                                  10
       As noted above, the jury instructions given by the district court read as follows:
       In order for the defendant to be guilty of Felony Murder in the First Degree, the
       state must prove each of the following:
           1. On or about November 29, 2005,
           2. in the State of Idaho,
           3. the defendant Juan Carlos Fuentes-Pina, A.K.A. Juan Pina, A.K.A. Juan
              Carlos Pina, kidnapped, or attempted to kidnap Jesse Naranjo, and
           4. during the commission or attempted commission of the kidnapping, Jesse
              Naranjo was killed.
       If any of the above has not been proven beyond a reasonable doubt, you must find
       the defendant not guilty. If each of the above has been proven beyond a
       reasonable doubt, then you must find the defendant guilty.

       Pina argues that the court erred in giving this overly broad jury instruction because it
permitted the jury to find Pina liable for any killing that occurred contemporaneously with the
kidnapping. For example, had Naranjo suffered a fatal heart attack during the commission or
attempted commission of the kidnapping, or was struck by lightning, the jury instructions given
by the district court would have allowed the jury to find Pina guilty of first degree felony murder.
Indeed, this instruction did not even require that the killing be foreseeable. It therefore is
defective even under the proximate cause theory of felony murder as followed in a minority of
states. We agree that the district court erred in giving these instructions to the jury because the
instructions as a whole fail to accurately reflect the applicable law and prejudiced Pina.
       The district court‟s jury instruction allowed the jury to convict Pina of felony murder
regardless of the fact that Pina‟s felonious act of kidnapping Naranjo, and Shores‟ homicidal act
of shooting Naranjo, were not part of a common scheme or plan. It is significant that the State
admitted during trial: “We don‟t assert that Mr. Shores was in on the plan, whatever there was, to
kidnap, for whatever purposes, Mr. Naranjo at the time that Mr. Pina brought him into the
house.” The district court‟s decision to use a strict liability theory in the jury instructions was an
impermissible application of the felony murder rule. Such a strained application was not what
the legislature intended when it enacted I.C. § 18-4003(d). Accordingly, we hold that the district
court committed reversible error when it instructed the jury.
                     C. We do not reach the issue of Pina’s motion to proceed pro se.




                                                                                                   11
       Pina also argues that the district court erred in denying his mid-trial motion to proceed
pro se because the court did not conduct a proper inquiry under Faretta. Because we vacate
Pina‟s conviction on other grounds, we do not reach this issue.
                                       IV. CONCLUSION
       Today we reaffirm that the Idaho legislature intended that the agency theory, rather than
the proximate cause theory, of felony murder applies in Idaho. Thus, we hold that Pina was
wrongly convicted of first degree felony murder because the district court appears to have
attempted to apply the proximate cause theory in his case, but the instruction given by the court
failed even to properly state the requirements of that theory. Accordingly, Pina‟s conviction is
vacated, and this case is remanded to the district court for a new trial.
       Justice pro tem KIDWELL, CONCURS.


       Justice J. JONES, concurring in the result and in Part III.B of the Court‟s opinion and
further concurring in Parts I and III of the dissenting opinion.
       I write separately because I concur in the dissenting opinion‟s analysis of the felony
murder rule in Idaho, as set out in Part I, and agree that the stream of events or proximate cause
theory is applicable in this case. However, I concur with the conclusion in Part III.B of the
Court‟s opinion that the jury instruction given by the district court on the felony murder issue
constituted reversible error. The Court correctly states the instruction “is defective even under
the proximate cause theory of felony murder.” Thus, I agree that the conviction must be vacated
and the case remanded for a new trial wherein the jury is to be properly instructed based upon the
stream of events/proximate cause theory.


       Justice BURDICK, dissenting.
       I respectfully dissent and, for the following reasons, would affirm Pina‟s conviction.
                        I. Felony murder pursuant to I.C. § 18-4003(d).
       Pina first contends that the State failed to present any evidence to support a finding that
he was acting in concert with Shores when Shores killed Naranjo. Therefore, he was convicted
absent proof beyond a reasonable doubt of every fact necessary to constitute the crime of felony
murder. I find that the State presented sufficient evidence for Pina‟s conviction of first degree
felony murder pursuant to I.C. § 18-4003(d).



                                                                                                12
       “The Due Process Clause of the United States Constitution precludes conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which
a defendant is charged.” State v. Romero-Garcia, 139 Idaho 199, 204, 75 P.3d 1209, 1214 (Ct.
App. 2003). Pina was charged and convicted under I.C. § 18-4003(d), which states:
       Any murder committed in the perpetration of, or attempt to perpetrate, aggravated
       battery on a child under twelve (12) years of age, arson, rape, robbery, burglary,
       kidnapping or mayhem, or an act of terrorism, as defined in section 18-8102,
       Idaho Code, or the use of a weapon of mass destruction, biological weapon or
       chemical weapon, is murder of the first degree.

Pina‟s felony murder charge was based on the underlying felony of kidnapping.               Upon
completion of the presentation of the State‟s case-in-chief, Pina moved, pursuant to Idaho
Criminal Rule 29, for dismissal, asserting that the State had failed to present a prima facie case
of felony murder. The district court denied the I.C.R. 29 motion, finding that “any killing
committed in the perpetration of or attempt to perpetrate a kidnapping is murder of the first
degree. Now, the question for the jury is whether this killing did in fact occur during the
perpetration or attempt to perpetrate the kidnapping.” Therefore, the court determined the state
had presented evidence sufficient to sustain a conviction of felony murder. See I.C.R. 29(a).
       I agree, and find that a defendant may be criminally liable for the death of any person
killed during the perpetration of a felony provided for in I.C. § 18-4003(d) when that murder is
the natural and probable consequence of the defendant‟s unlawful acts. The defense argues that
Idaho does not follow a proximate cause approach, relying on its contention that I.C. § 18-
4003(d) is a codification of the common law in existence at the time of its adoption. I do not
find this argument to be persuasive proof that Idaho has adopted an agency theory of felony
murder. The Court‟s previous treatment of felony murder in general provides guidance on the
evolution of our felony murder law. First, in examining and defining the plain language of I.C. §
18-4003(d), this Court has stated that “[t]he word „perpetration‟ is synonymous with the word
„commission,‟ which means „the act of committing, performing, or doing (as a crime, misdeed,
or other offense).‟” State v. McLeskey, 138 Idaho 691, 698, 69 P.3d 111, 118 (2003) (quoting
Webster’s Third New International Dictionary 1684 (Philip Babcock Gove ed., G. & C. Merriam
Co. 1971)). Thus, the plain language of I.C. § 18-4003(d) indicates that any murder committed
in the commission of kidnapping is murder of the first degree.


                                                                                                13
       The language in I.C. § 18-4003(d) has remained largely unchanged since Idaho‟s
territorial days. State v. Lankford, 116 Idaho 860, 879, 781 P.2d 197, 216 (1989). The first
Idaho case to address the policy behind the felony murder rule stated: “It is the policy of the law
to hold persons engaged in felonies, or attempts to commit felonies, responsible for all the
consequences of their felonious acts, whether such consequences were intended or not….”
People v. Mooney, 2 Idaho 24, 2 P. 876 (1882).
       This policy of holding a person committing a felony criminally liable for “all the
consequences” of his felonious acts was reiterated, and somewhat restricted, by this Court in
State v. Hokenson, 96 Idaho 283, 527 P.2d 487 (1974). In Hokenson we stated: “A person is
criminally liable for the natural and probable consequences of his unlawful acts as well as the
unlawful forces set in motion during the commission of an unlawful act.” 96 Idaho at 288, 527
P.2d at 492. This was the first introduction of Idaho‟s “stream of events” approach to felony
murder under I.C. § 18-4003(d). In Hokenson, the defendant entered a store with a bomb and a
knife with the intent to commit robbery, but he was met with resistance and eventually placed
under arrest. Id. at 287-88, 527 P.2d at 491-92. One of the responding officers was then killed
when handling the bomb the defendant had brought into the store. The Court found that the
defendant had “voluntarily set in motion an instrumentality which carried a very real probability
of causing great bodily harm,” and even the intervening force of the defendant‟s arrest did not
allow him to escape liability for felony murder. Id. at 288, 527 P.2d at 492.
       The “stream of events” language was then used in State v. Fetterly, 109 Idaho 766, 710
P.2d 1202 (1985) and State v. Pratt, 125 Idaho 546, 873 P.2d 800 (1993). Both cases were
concerned with the temporal issue of a felony that occurred prior to the actual murder, and both
involved defendants that were either co-felons or the principal actor. In Fetterly, this Court
found that the victim‟s death was “part of a stream of events which began the evening [the
defendant] entered [the victim]‟s home and ended the following day when [the victim]‟s
possessions were removed from the home.”           109 Idaho at 771-72, 710 P.2d at 1207-08.
Similarly, in Pratt, the Court stated that the victim‟s death had been “part of the stream of
events” that began when the defendant and his brother entered a residence for the purpose of
stealing money, continued through a chase, and ended the following day when they finally
surrendered to the police after killing one of the officers. 125 Idaho at 558, 873 P.2d at 812.




                                                                                                  14
        Furthermore, the Idaho Court of Appeals has used language that allows for the liability of
anyone involved in the initial felony if that felony itself leads to death:
        Any murder committed during the perpetration of certain felonies … is murder in
        the first degree under § 18-4003(d). Any participant in the predicate felony can
        be held accountable for first degree murder for any death that occurred during the
        commission of the felony, regardless of whether that individual directly
        participated in the killing or expected or intended a death to occur.7

State v. Eby, 136 Idaho 534, 539, 37 P.3d 625, 630 (Ct. App. 2001). In Eby, the defendant, along
with two others, robbed and murdered the victim, and the defendant was convicted of first degree
felony murder. The language from Eby follows the stream of events approach in that so long as
an individual has the intent to participate in the predicate felony, he can be criminally liable for
any death occurring during the commission of that felony. This Court also stated in State v.
Windsor, 110 Idaho 410, 716 P.2d 1182 (1985) that, under I.C. § 18-4003(d), “a defendant who
participates in a felony can be held liable for the death of any person killed during the
commission of the felony, regardless of the individual defendant‟s intent that a death occur.”
110 Idaho at 419, 716 P.2d at 1191.
        It is well established that the intent requirement for first degree murder is satisfied by the
commission of the underlying felony:
        [P]roof of a murder in the first degree is established in all of its elements by
        proving (a) the unlawful killing of a human being (b) in the course of a robbery.
        The requirement of “malice aforethought” is satisfied by the fact the killing was
        committed in the perpetration of a robbery.

State v. Lankford, 116 Idaho 860, 866, 781 P.2d 197, 203 (1989). The defendant need only have
the specific intent to commit the predicate felony, not the homicide. In State v. Cheatham, 134
Idaho 565, 6 P.3d 815 (2000), this Court addressed a situation where the actors may not have
formed the intent to commit the felony prior to the homicide. The Court stated:
        If the State cannot prove Cheatham and Duyungan intended to rob [the victim] by
        taking his property against his will prior to the commission of the homicide, then


7
  The court laid forth this standard in a discussion on hearsay evidence, finding that there was overwhelming
evidence implicating the defendant in the underlying felony, therefore a jury would have found him guilty on the
felony murder theory even without the hearsay. Id.


                                                                                                                   15
          the homicide and the taking of [the victim]‟s property would not be part of the
          same general criminal occurrence and Cheatham and Duyungan could not be
          convicted of felony murder.

Id. at 571, 6 P.3d at 821. Where the intent to commit the felony was present at the time of the
homicide, the homicide is considered part of the same general criminal occurrence. In addition,
similar language was used in a 1985 Idaho Supreme Court case: “In a prosecution for felony-
murder, the state is relieved of the burden of proving that a defendant had the specific intent to
kill and instead need only prove that all individuals charged as principals had the specific intent
to commit the predicate felony.” State v. Scroggins, 110 Idaho 380, 386, 716 P.2d 1152, 1158
(1985).
          Therefore, where the defendant had the specific intent to commit the underlying felony,
he is criminally liable for the death of any person killed in the perpetration of the felony when
that murder is the natural and probable consequence of his unlawful acts. It should be noted that
some past Idaho case law has simply stated that a person is criminally liable for any death that
occurs during the commission of the felony, with no limitation provided, and I find this liability
too expansive. See State v. Windsor, 110 Idaho 410, 716 P.2d 1182 (1986); State v. Eby, 136
Idaho 534, 539, 37 P.3d 625, 630 (Ct. App. 2001). However, our other case law provides a
proximate cause limitation to this rule. See State v. Hokenson, 96 Idaho 283, 527 P.2d 487
(1974); State v. Fetterly, 109 Idaho 766, 710 P.2d 1202 (1985); State v. Pratt, 125 Idaho 546,
873 P.2d 800 (1993). To allow an individual to be criminally liable for any death occurring in
the commission of a felony would be an expansion of our felony murder law.
          The Illinois Supreme Court decided a case very similar to the one currently before us in
People v. Lowery, 687 N.E.2d 973 (1997). The facts of Lowery were as follows:
          In his statement to the police officers, defendant explained that he and his
          companion, “Capone,” planned to rob Maurice, Marlon, and Robert. As Maurice,
          Marlon, and Robert walked along Leland Avenue in Chicago, defendant
          approached them, pulled out a gun and forced Maurice into an alley. Capone
          remained on the sidewalk with Robert and Marlon. Once in the alley, defendant
          demanded Maurice‟s money. Maurice grabbed defendant‟s gun and a struggle
          ensued. Meanwhile, Capone fled with Robert in pursuit. Marlon ran into the
          alley and began hitting defendant with his fists. As defendant struggled with


                                                                                                16
       Maurice and Marlon, the gun discharged. The three continued to struggle onto
       Leland Avenue. Upon pushing Maurice down, defendant noticed that Maurice
       now had the gun. Defendant then ran from the place of the struggle to the corner
       of Leland and Magnolia Avenues, where he saw two women walking. As he ran,
       he heard gunshots and one of the women scream.

Id. at 975. The court first stated that it would adhere to the proximate cause theory of felony-
murder: “A felon is liable for those deaths which occur during a felony and which are the
foreseeable consequence of his initial criminal acts.” Id. at 977-78. The court found that the
defendant‟s attempted robbery set in motion the events that lead to the victim‟s death and it was
“unimportant that defendant did not anticipate the precise sequence of events that followed his
robbery attempt” because his “unlawful acts precipitated those events, and he [was] responsible
for the consequences.” Id. at 978.
        Here, the jury could reasonably find that Pina had the specific intent to commit the
predicate felony of kidnapping. A witness observed Naranjo exiting his car with Pina following
him into the house, and the witness testified that Pina acted consistently with having a gun in his
hand inside his pocket. Pina was then seen to motion Naranjo to the floor after they got inside
the house while they argued. Pina had a gun in his hands and when Shores asked him to hand
over the gun, Pina replied “No. F--- this fool.” After the struggle for the gun, Pina tried to stop
Naranjo from exiting the house.       Based upon the testimony the jurors heard, they could
reasonably have concluded that Pina was detaining Naranjo against his will, and had the intent to
kidnap or even kill Naranjo.
       Then, similarly to the facts in Hokenson and Lowery, Naranjo‟s death occurred as part of
the stream of events “set in motion during the commission” of the kidnapping by Pina. Shores‟s
intent at this time was irrelevant. When Pina held Naranjo at gunpoint he “set in motion an
instrumentality which carried a very real probability of causing great bodily harm,” similar to the
bomb in Hokenson. Even with the intervening force of Shores gaining control of the gun, Pina
continued to attempt to detain Naranjo against his will, preventing him from leaving through the
backdoor. Thus, it does not matter whether Pina “directly participated in the killing or expected
or intended a death to occur” because the murder occurred during the commission of the
predicate felony and was the natural and probable consequence of this kidnapping. Therefore, I
would affirm Pina‟s conviction.


                                                                                                17
                                II. The jury instruction was proper.
        Pina next argues that the district court erred when it gave jury instructions that allowed
the jurors to convict under a strict liability theory because the instructions misled the jury and
prejudiced Pina by affirmatively misstating the law. “The propriety of jury instructions is a
question of law over which this Court exercises free review.” State v. Young, 138 Idaho 370,
372, 64 P.3d 296, 298 (2002). “When reviewing jury instructions, this Court must first ask
whether the instructions as a whole, and not individually, fairly and accurately reflect the
applicable law. To be reversible error, instructions must have misled the jury or prejudiced the
complaining party.” Id. (citations omitted).
        The jury instruction Pina contends allowed the jurors to convict him under a theory of
strict liability read as follows:
        In order for the defendant to be guilty of Felony Murder in the First Degree, the
        state must prove each of the following:

              1. On or about November 29, 2005,

              2.   in the State of Idaho,

              3.   the defendant Juan Carlos Fuentes-Pina, A.K.A. Juan Pina, A.K.A. Juan
                   Carlos Pina, kidnapped, or attempted to kidnap Jesse Naranjo, and

              4.   during the commission or attempted commission of the kidnapping,
                   Jesse Naranjo was killed.

        If any of the above has not been proved beyond a reasonable doubt, you must find
        the defendant not guilty.      If each of the above has been proven beyond a
        reasonable doubt, then you must find the defendant guilty.

Pina argues that the court erred in giving this instruction because it not only allowed the jury to
convict him regardless of whether the killing was attributable to him through an agency theory of
liability, but it also allowed the jury to find him liable for any killing that occurred
contemporaneously with the alleged kidnapping, even in the absence of any relation between the
two acts.
        Pina‟s argument fails on both grounds. First, as discussed above, the court was not
required to instruct the jury that it had to find Pina was acting in concert with Shores or in



                                                                                                18
furtherance of a common object or purpose, because this is not the law in Idaho. Furthermore,
the instruction did not allow Pina to be convicted for any killing that occurred
contemporaneously with the kidnapping. Instead, the instruction specified that it was the killing
of Jesse Naranjo during the kidnapping that the jury was to consider. The jury had knowledge
that Shores had pled guilty to voluntary manslaughter for the death of Naranjo and that the
“killing” referred to was the murder of Naranjo by Shores. This instruction properly reflected
the law and, therefore, did not mislead the jury or prejudice Pina.
                III. Pina’s midtrial request to proceed pro se was properly denied.
         As I would affirm the conviction, I will address Pina‟s contention that his request to
proceed pro se was wrongfully denied. Pina‟s final argument is that the district court erred in
denying his midtrial motion to proceed pro se without conducting a proper Faretta inquiry. The
United States Supreme Court held in Faretta v. California, 422 U.S. 806, 819-20 (1975) that the
Sixth Amendment guarantees criminal defendants the right to proceed pro se. In Faretta, the
Supreme Court found that the right to self-representation is implied by the structure of the Sixth
Amendment: “The right to defend is given directly to the accused; for it is he who suffers the
consequences if the defense fails.” 422 U.S. at 819. However, the Supreme Court recognized
that “the right of an accused to conduct his own defense seems to cut against the grain of this
Court‟s decisions holding that the Constitution requires that no accused can be convicted and
imprisoned unless he has been accorded the right to the assistance of counsel.” Id. at 832.
Therefore, the Supreme Court held that that an accused must “knowingly and intelligently”
relinquish the benefits associated with the right to counsel. Id. at 835. Thus, while a defendant
“need not have a valid reason for seeking to act as his own attorney any more than he or she
needs a valid reason to exercise any other constitutional right,” State v. Hoppe, 139 Idaho 871,
875, 88 P.3d 690, 694 (2003)8, a Faretta inquiry generally must be conducted to ensure that the
defendant is aware of the dangers and disadvantages of self-representation. See Faretta, 422
U.S. at 835; State v. Lankford, 116 Idaho 860, 865, 781 P.2d 197, 202 (1989).
         However, the Faretta right to self-representation is not absolute. Martinez v. Court of
Appeal, 528 U.S. 152, 161 (2000). To preserve the right to self-representation, “a defendant
must make a timely and unequivocal request for self-representation which is not a tactic to


8
  In Hoppe, the Court found error in the district court‟s pre-trial denial of the defendant‟s motions for self-
representation. It is, therefore, distinguishable from the case before this Court now.


                                                                                                                  19
secure delay.” U.S. v. Smith, 780 F.2d 810, 811 (9th Cir. 1986). In Faretta, the facts of the case
stated that the defendant had “clearly and unequivocally declared to the trial judge that he
wanted to represent himself and did not want counsel.” 422 U.S. at 835 (emphasis added). The
request had also been made weeks before the trial. Id. When a defendant‟s motion to proceed
pro se is not timely and unequivocal, the granting or denial of the motion is left to the discretion
of the trial court. State v. Stenson, 970 P.2d 1239, 1274 (Wash. 1997).
       First, a defendant‟s request for self-representation is timely if made before meaningful
trial proceedings have begun. Smith, 780 F.2d at 811; see also People v. Burton, 771 P.2d 1270,
1275 (Cal. 1989) (“It is within the court's discretion to deny a motion made before the jury is
impaneled if the court finds the motion is made for the purpose of delay.”). In State v. Reber,
138 Idaho 275, 61 P.3d 632 (Ct. App. 2002), the court of appeals stated:
        A motion for self-representation is timely if made prior to the commencement of
       meaningful trial proceedings.      Empanelment of a jury is a meaningful trial
       proceeding; thus, a motion for self-representation after jury empanelment is
       untimely. Where the request for self-representation is untimely, it nevertheless
       may be granted in the trial court‟s discretion. We, therefore, review the trial
       court‟s denial of an untimely motion for self-representation under an abuse of
       discretion standard.

Id. at 277-78, 61 P.3d at 634-35 (citations omitted). In Reber, the court of appeals found that the
district court did not abuse its discretion in denying the defendant‟s motion for self-
representation made after jury empanelment, even though the court had not expressed its
rationale for the denial. Id. at 278, 61 P.3d at 635. In contrast to the defendant in Reber, the
defendant in Faretta had made his request for self-representation weeks before the trial had
begun. 422 U.S. 806, 835 (1975). The requirement that the defendant make a timely request
“serves to prevent a defendant from misusing the motion to delay unjustifiably the trial or to
obstruct the orderly administration of justice.” People v. Horton, 906 P.2d 478, 504 (Cal. 1995).
Thus, the trial court is granted discretion in denying motions to proceed pro se that were not
timely made.
       Second, the request to proceed pro se must be unequivocal “[t]o protect defendants from
making capricious waivers of counsel and to protect trial courts from manipulative vacillations
by defendants regarding representation.” State v. Stenson, 970 P.2d 1239, 1275 (Wash. 1997).


                                                                                                 20
The Supreme Court in Faretta acknowledged this concern: “The right of self-representation is
not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with
relevant rules of procedural and substantive law.” 422 U.S. at 834 n.46. In Stenson, the
defendant made a motion to represent himself when the trial court denied his motion for new
counsel. 970 P.2d at 1275. The Washington Supreme Court found the defendant‟s request to be
equivocal based on the record as a whole, including the following exchange:
       THE COURT: As to a motion to represent yourself at this point in the trial, as I
       have indicated, certainly you have a constitutional right to do that if a motion is
       timely made. At this point in time I find that that motion is not timely made and I
       also find based upon your indications that you really do not want to proceed
       without counsel.

       DEFENDANT: But likewise I do not proceed [sic] with counsel that I have.

       THE COURT: I understand that. Based upon those considerations, I‟m going to
       deny the motion to allow you to proceed pro se.

Id. (emphasis in original). Requiring that a defendant make an unequivocal request to proceed
pro se allows the trial court “to distinguish between a manipulative effort to present particular
arguments and a sincere desire to dispense with the benefits of counsel.” United States v. Bush,
404 F.3d 263, 271 (4th Cir. 2005).        The right to self-representation cannot be used as a
subterfuge to delay or “for disruption, for distortion of the system, or for the manipulation of the
trial process.” Edwards v. Commonwealth, 644 S.E.2d 396, 400 (Va. Ct. App. 2007) (citing
United States v. Frazier-El, 204 F. 3d 553, 558 (4th Cir. 2000)). Therefore, to protect the dignity
of the courtroom, a defendant‟s request to proceed pro se must be unequivocal.
        Here, Pina‟s request to proceed pro se was not timely nor unequivocal. Similarly to
Reber, meaningful trial proceedings had commenced before Pina made his request and it was
therefore not timely. Not only had meaningful trial proceedings commenced, they were nearing
a close. Following Pina‟s decision to not return to court, both defense counsel and the State
rested and the court recessed before closing arguments were to begin. While the district court
did not express its rationale for the denial of Pina‟s motion other than to recognize it as untimely,
the stage of the proceedings was undeniably meaningful and the district court acted within its
discretion in denying Pina‟s untimely motion to proceed pro se.



                                                                                                  21
       In addition, Pina‟s motion for self-representation was equivocal and a clear example of
the need “[t]o protect defendants from making capricious waivers of counsel and to protect trial
courts from manipulative vacillations by defendants regarding representation.” Similarly to
Stenson, Pina‟s request was not equivocal enough to allow the court to determine if it was a
sincere request or an effort to delay or disrupt the proceedings. Based upon the deputy‟s account
of Pina‟s refusal to come back to the courtroom, Pina had become very angry with his counsel,
stating “F--- you. I‟m not coming to court. Just give me my 3X jumpsuit, it‟s a mistrial, I want a
new attorney.” The court then requested that defense counsel inform Pina that the court was
ordering him to appear and indicated that it viewed Pina‟s behavior as an effort to disrupt the
proceedings when it stated “if a defendant purposefully refuses to come to the proceedings, we
will not allow him to dictate what goes on with the case.” After the court had determined to
proceed without Pina, the deputy returned and stated that Pina had agreed to come to the
courtroom but only “if he can grab his papers and represent himself at this point.”
       The court determined that Pina would not be allowed to represent himself because the
request was untimely. The deputy informed Pina of the court‟s decision and reported:
       I was informed … to inform him, that he would not be allowed to represent
       himself—represent himself. He was about halfway up the hall. He said, and I
       quote, “F--- you then. I ain‟t going.” And I put—I asked him if he‟d just step in
       holding five for a minute so I could inform you, and he said, “Fine,” and he sits in
       there and refuses to go any further.

However, Pina then returned to the courtroom before closing arguments commenced. Defense
counsel informed the court that Pina intended to be present during the remainder of the trial.
Pina then informed the court that he had been concerned that another case pending against him
was going to be brought up and would be prejudicial. The court assured him that the only charge
the jury would be considering was the felony murder charge and the lesser included offense of
false imprisonment. Thus, Pina indicated that he had refused to come to the courtroom because
he believed he was being charged with another crime.
       Examining the record as a whole, I find that Pina‟s request for self-representation was not
made as a result of a sincere desire to dispense with the benefits of the right to counsel and
instead was an effort to disrupt or manipulate the proceedings. In its Memorandum Decision and
Order, the district court stated that Pina‟s “request was also reported as an ultimatum, presenting


                                                                                                22
the court with the predicament of either allowing a criminally charged defendant to represent
himself in the last hours of his first degree murder trial, or the defendant would refuse to appear.”
Therefore, I find that the district court did not abuse its discretion in denying Pina‟s midtrial
motion to proceed pro se because it was equivocal and untimely.
       For the forgoing reasons, I would affirm the conviction for first degree murder.
       Justice HORTON CONCURS.




                                                                                                  23
