Opinion
C078430
11-29-2017
THE PEOPLE, Plaintiff and Respondent, v. DION JOHNSON, SR., Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 10F07373)
When a person known as "Ricky" asked for advice about how to rob a bank, defendant Dion Johnson, Sr., "told him he was a fool if he wanted to rob banks, because it's addictive." The evidence in this case appears to bear out defendant's advice, as he participated in bank robberies for more than a decade. A jury convicted defendant of committing two robberies - a second degree robbery of a First Bank employee on September 6, 2011 (Pen. Code, § 211), and a second degree robbery of a California Community Credit Union employee on September 12, 2011 (§ 211). The jury found true the allegation defendant had previously been convicted of two serious felonies. (§§ 667, subds. (b)-(j), 1170.12.) The trial court sentenced defendant to serve 50 years to life in prison plus an additional 20 years.
Undesignated statutory references are to the Penal Code.
Defendant was acquitted on four counts of second degree robbery against Bank of America employees in connection with a robbery on September 4, 2010. The jury was unable to reach a unanimous verdict on four counts of second degree robbery against First Bank employees in connection with a robbery on November 4, 2010. --------
On appeal, defendant contends (1) the trial court erred in admitting into evidence statements made by defendant in 2004 to an Assistant United States Attorney and an agent of the Federal Bureau of Investigation (FBI), and (2) the trial court erroneously denied his motion for self-representation under Faretta v. California (1975) 422 U.S. 806 (Faretta).
We conclude the trial court did not err in admitting evidence from defendant's 2004 interview that was subject to a proffer agreement. The proffer agreement barred use of defendant's interview statements only in a federal prosecution of the bank robberies discussed by defendant. The state prosecution in this case is not affected by the proffer agreement between defendant and federal agents. As to the Faretta claim, we reject it because defendant did not actually request to represent himself. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
Prosecution Evidence
1. Defendant's 2004 Interview with Federal Agents
FBI Special Agent Nancy DeVane testified she interviewed defendant in 2004 regarding his role in several robberies earlier that year. The interview was made under terms of a proffer agreement brokered by defendant's attorney at the time. During the interview, defendant stated he was contacted by a person named "Ricky" who solicited defendant's advice on bank robbery. Defendant told Ricky that "if he was going to do it, then he should never take a gun and not threaten the tellers and watch not to leave fingerprints." But defendant did more than give advice, he participated in three bank robberies on April 3, 2004 with Ricky and another individual known as "Raymont." The trio first robbed a Wells Fargo Bank in Oakland. Ricky went into the bank wearing a gray sweat suit and a dreadlock wig, and Raymont served as the get-away driver. Defendant observed from another vehicle. After the Wells Fargo robbery, the three met in a local park and counted the money - which totaled between $2,500 and $4,000.
The trio then robbed a Citibank in Dublin with Ricky wearing the same disguise. Again, Raymont served as get-away driver and defendant drove separately. They all met in a Target parking lot, where Ricky decided he wanted to rob a third bank. Ricky discarded the wig, donned a baseball cap, and changed his clothing. Ricky then robbed $4,000 from an Oakland branch of Bank Of the West. The trio then met outside of Ricky's house where defendant was given $1,500 "for watching and for his advice."
Defendant also described other times when he had robbed banks, stating he chose locations with easy escape routes and variable timing to avoid presenting the police with a pattern. Defendant revealed he used disguises including surgical masks, a dreadlock wig, and layers of clothing so he would appear to be larger. 2. The 2010 Robberies of Bank of America , First U.S. Bank , and First American Bank Employees
The prosecutor in this case introduced evidence of three robberies committed in 2010, for which the jury did not convict defendant. We briefly recount the evidence relating to these robberies to provide context for the 2011 robberies for which defendant was convicted.
A Bank of America branch in Sacramento was robbed by three African-American men on September 4, 2010. The men wore orange construction-style vests, gloves, dust masks, sunglasses, and hats. One of the men was identified as Edward Broughton. Broughton is defendant's brother and was defendant's roommate at the time. Another of the men was identified as defendant's son, Dion Leroy Johnson, Jr. (Junior) Broughton pointed a gun at the bank employees and customers. Junior yelled at everyone: "Get down on the floor." Two of the robbers jumped over the teller counter and grabbed money from the drawers. The robbers then fled. Cell phone data established defendant's cell phone was in contact with another phone before, during, and after the robbery. Both cell phones were in the vicinity of the of the bank during the robbery.
A First U.S. Bank branch was robbed in Sonoma County on October 26, 2010, by Broughton and another African-American man alleged to have been defendant. The two robbers wore dreadlock wigs, sunglasses, gloves, and jackets with "security" printed on them. The robbers discarded their disguises in a dumpster behind the bank. DNA testing revealed defendant was the primary contributor of genetic material swabbed from the headband of one the discarded wigs and from the lining of one of the gloves attached to the wig.
A First American Bank branch in Sacramento was robbed on November 4, 2010 by three African-American men. Two of the robbers entered the bank wearing black clothing, reflective vests, sunglasses, and hats. One of the robbers, later identified as Junior, grabbed cash from a teller's drawer. Junior punched a bank employee when he became frustrated by how little money there was in the drawer. Junior had the employees open the vault that contained approximately $75,000. The robbers grabbed an undisclosed amount and left. Outside, a bystander noticed "two guys coming out of the bank at a pretty fast pace wearing dust masks and reflective jackets." The two men got into a silver color car being driven by a third person. 3. The 2011 Robbery of a First Bank Employee
On August 28, 2011, Donante Pridgett went to a First Bank branch in Sacramento where he appeared to "kind of scope the bank." Pridgett went up to a teller window and asked about opening an account. The bank employees who spoke with him "had a bad feeling." The employees got the impression Pridgett was scanning the area behind the teller counter and took note of the fact he did not end up opening an account.
On August 31, 2011, defendant and Antoine Marlbrough exchanged text messages the prosecutor characterized as messages about plans for a bank robbery. Defendant texted, "wat's up nephew [] u go look at her? [] win u wanna holla at her" Marlbrough texted back, "Still tryna put it together[] We aint seen no guard [] buzzer doors, escort n morn sumtime, []Wassup wit the outfit" Defendant responded, "Wat size, 2morrow i get em." Marlbrough answered, "Let me ask them first."
Cell phone records showed defendant's phone was near the bank at 9:58 a.m. on September 6, 2011, when it was called by Pridgett's cell phone. The conversation lasted 3 minutes and 23 seconds.
At 10:11 a.m. that day, Pridgett and Marlbrough walked into the First Bank branch while wearing bandanas over their faces, black jackets, and hats marked "security." Defendant followed them in while wearing overalls, a white pith helmet, and a dust mask. Defendant yelled at everyone: "Just get down and put your face down." Pridgett was one of those who dropped to the ground in response.
Marlbrough jumped over the teller counter and took approximately $2,500 in cash from a teller's drawer. One of the robbers noticed an employee had triggered the silent alarm, and the robbers then fled. One of the people inside the bank watched as the robbers ran outside, got into an older model white Suburban, and drove away. During the robbery, defendant's cell phone connected its signal to the tower closest to the bank.
Defendant's cell phone called Pridgett's at 10:08 a.m. and again at 10:26 a.m.
The next day, Junior placed a call from jail to defendants' cell phone. The call was recorded and transcribed. During the call, Junior asked defendant, "What happened . . . what's up with it?" Defendant answered, "Yeah. This phone ain't cool." During the conversation, defendant said: "I was watch—I was watching the nigga, um . . . uh, uh, what's the little nigga? Kevin—Kevin Hart. [¶ . . . ¶] He, he was talking 'bout three niggas went to go, uh, rob a bank, right? [¶] . . . [¶] He said, uh . . . they walk in to the bank. He said, man, he say one nigga yelled, 'everybody get down' and the big niggas got down, the biggest nigga outta the three of 'em walked in the bank got down—got down on the floor too. [¶ . . . ¶] Yeah, that shit has me dyin' laughing, man. That (unintelligible) act a damn fool." 4. The 2011 Robbery of California Community Credit Union Employee
Shortly after 9:00 a.m. on September 12, 2011, defendant was seen pacing outside a River City Bank branch in Sacramento. Defendant was talking on his cell phone. One of the employees grew suspicious and locked the front door. Although defendant asked to be admitted, the employee who answered the door refused him entry. A surveillance video shows defendant got into a white Suburban and drove away.
About a half hour later, defendant walked into a California Community Credit Union branch in Elk Grove. Karen Guthrie was working by herself in the branch. Defendant inquired about opening a new account for his son who was moving into the area after completing military service. Guthrie gave him the application, and defendant left. Immediately after defendant left, Marlbrough and Pridgett walked into the bank wearing camouflage outfits, hats, and sunglasses. One carried a yellow bag and one carried a brown bag. One of the men grabbed the telephone Guthrie was using and slammed it down. Marlbrough and Pridgett demanded that Guthrie open the cash drawers. The men grabbed cash and demanded that Guthrie open the vault. From the vault, Guthrie took bait cash that triggered an alarm and put it into a bag held by one of the men. Marlbrough and Pridgett left with an amount between $13,000 and $18,000.
Video surveillance showed defendant's white Suburban followed Pridgett's black Mercedes out of the credit union's parking lot. Cell phone data showed defendant and Pridgett were near the credit union and called each other at 10:11, 10:20, and 10:28 a.m. Defendant did not arrive at his workplace until 4:30 that afternoon even though he was scheduled to begin his shift at noon.
During the first week of October 2011, police officers conducted searches authorized by warrants for the residences of Pridgett, Marlbrough, and defendant.
In addition to Pridgett's residence, the police searched his Mercedes. Inside the Mercedes, the police found a mechanic's glove, a brown bag, a yellow bag, sunglasses, a hairbrush, and a blue California Community Credit Union strap. Guthrie testified the California Community Credit Union strap was the type used to wrap stacks of dollar bills stored in the vault and was never given out to customers.
DNA testing indicated Marlbrough was primary contributor of genetic material found on the hairbrush and the inside of the glove. Inside Marlbrough's apartment, police found a green camouflage hat and 13 cell phones.
Inside defendant's apartment, the police found a blue backpack that resembled a backpack used in connection with one of the robberies. A cell phone found in defendant's white Suburban contained contact numbers for Marlbrough and Pridgett.
Elk Grove Police Department Detective Mark Bearor interviewed defendant on October 4, 2011. During the interview, defendant admitted he was in the areas of the robbed River City Bank and California Community Credit Union branches during the morning of September 12, 2011. Defendant stated he went into the Community Credit Union branch because he was considering moving his business to a credit union. Defendant stated he "saw two black guys" coming out of the credit union. When he saw the bank employee lock the door, defendant "knew somethin' had happened." Defendant saw the men get into a black Mercedes and drive off. Defendant followed the Mercedes and offered to draw a map of where they went for the detective.
DISCUSSION
I
Admission of Defendant's Statements Made in 2004 to Federal Agents
Defendant argues the trial court "violated due process by admitting [his] statements that were immunized by the 'proffer' agreement" with federal agents in 2004. This argument appears to have two components: First, a contention the terms of the proffer agreement did not allow the FBI agent to testify in this case about what defendant said in his 2004 interview. Second, an assertion his statements in 2004 were not made voluntarily. Defendant does not argue the evidence from his 2004 interview was inadmissible under Evidence Code section 1101. We reject defendant's arguments.
A.
Trial Court Ruling
Prior to trial, the prosecution filed a motion under Evidence Code section 1101 to admit into evidence statements made by defendant in his 2004 interview describing his participation in multiple robberies to federal agents. Defendant's statements were made under the terms of a proffer agreement that states:
"PROFFER AGREEMENT
"With respect to the meeting of Dion Laroy Johnson ('Client') and his attorney, Deputy Federal Public Defender Elizabeth Falk, with Assistant U.S. Attorney Gregg Lowder of the United States Attorney' Office, and Special Agent Doug Perez of the F.B.I. held at the offices of the United States Attorney for the Northern District of California ('the Office') on June 15, 2004 ('the meeting'), the following understandings exist:
"(1) In any prosecution brought against Client by the Office, except a prosecution for false statements, obstruction of justice, or perjury, the Office will not offer in evidence any statements made by Client at the meeting (A) in its case-in-chief or (B) at sentencing. The Office may use any statements made by Client and any other information derived directly or indirectly from the meeting for the purpose of obtaining leads to other evidence, which evidence may be used by the Office in any stage of a criminal prosecution (including but not limited to detention hearing, trial or sentencing).
"(2) Notwithstanding paragraph (l) above, the Office may use any statements made by Client at the meeting for any purpose (A) should Client testify or (B) to rebut any evidence offered, or factual assertions made, by or on behalf of Client at any Stage of a criminal prosecution (including but not limited to detention hearing, trial or sentencing).
"(3) It is further understood that this agreement is limited to the statements made by Client at the meeting and does not apply to any oral, written or recorded statements made by Client at any other time or to any other information provided at the meeting. Moreover, the provisions of Fed. R. Crim. P. 11(f) and Fed. R. Evid. 408 and 410 do not apply to any statements made by Client at the meeting. No understandings, promises, or agreements have been entered into with respect to the meeting other than those set forth in this agreement, and none will be entered into unless memorialized in writing and signed by all parties." (Italics added.)
Defendant's trial attorney in this case opposed the admission of statements made by defendant under the proffer agreement. Trial counsel argued: defendant's statements to federal agents in 2004 did not meet the criteria for admissibility under Evidence Code section 1101; the proffer did not allow the prosecution in this case to call a federal agent to testify regarding defendant's statements in 2004; and, even if admissible under terms of the proffer, defendant's statements were not voluntary because he did not understand they could be used against him in a later state prosecution.
The trial court granted the prosecution's motion in part. The trial court admitted defendant's statements that he advised two men in the commission of bank robberies on April 22, 2004, and regarding his use of disguises during bank robberies. The trial court excluded defendant's statements regarding commission of other bank robberies in 2004, and his identification of himself on surveillance video footage. The trial court also determined the proffer agreement did not limit the state's use of defendant's 2004 statements to prove subsequent criminal offenses.
B.
Whether the Admission of Evidence in this Case Exceeded the Terms of the Proffer
The government has the prerogative to grant different types of immunity in exchange for voluntary statements or cooperation in connection with criminal investigations. "When, as in this case, the defendant has not been forced to testify and so had not claimed the Fifth Amendment privilege against self-incrimination, the government can grant the defendant varying degrees of immunity in an informal agreement." (Anthony v. Cambra (9th Cir. 2000) 236 F.3d 568, 580 (Anthony), quoting United States v. Dudden (9th Cir. 1995) 65 F.3d 1461, 1467.) The Ninth Circuit's decision in Anthony illustrates the very limited nature of the immunity that may be promised.
Anthony involved the murder of Ron Ewing, a crime the police believed to have been orchestrated by the defendant, Michael Anthony, and his business partner, Ronald McIntosh, when they hired an assassin, Drax Quarterman. (Anthony, supra, 236 F.3d at p. 570.) Anthony was represented by an attorney when he "entered into an immunity agreement recorded in a four-page document and in a taped oral statement setting forth additional provisions." (Ibid.) Anthony made statements about the crime in a meeting with state and federal prosecutors. (Ibid.) In pertinent part, the immunity agreement provided "that there will be no state or federal prosecution of MICHAEL ANTHONY with regard to the killing of Ron Ewing provided MICHAEL ANTHONY is telling the truth when he represents that he is not the person who actually did the shooting of Ron Ewing and that he did not enter into an agreement prior to the killing with the perpetrator of the killing that that person was to kill Ron Ewing. Although it is not apparent that MICHAEL ANTHONY faces any criminal liability based upon the actual killing of Ron Ewing, it is agreed that provided he has been and continues to be truthful with regard to his knowledge of that killing, he will be given immunity from any state and/or federal prosecution based upon that homicide." (Id. at pp. 578-579.) A recorded statement memorializing the agreement provided that if "at some future date and time [prosecutors] develop independent evidence that [Anthony], in fact, w[as] an active participant in the crime, a principal, then all the information which [Anthony is] providing [to prosecutors] today" can be used to prosecute him. (Id. at p. 580.)
Anthony was later prosecuted by the state and convicted of murder. (Anthony, supra, 236 F.3d at pp. 570-571.) After Anthony's direct appeal proved unsuccessful, he sought federal habeas corpus relief. (Id. at pp. 571-572.) On federal habeas corpus, Anthony argued that as a matter of due process "the agreement prohibited the state from prosecuting him on the basis of any evidence derived from the information Anthony provided" under the immunity agreement. (Id. at p. 580.) The Ninth Circuit rejected the contention, holding the state had not violated the immunity agreement because Anthony's conviction rested on independent evidence. (Id. at p. 581.) In so holding, the Anthony court noted: "In retrospect, of course, the agreement turned out to be rather a bad deal for Anthony. An agreement providing immunity on the condition that the subject is telling the truth about his [or her] lack of involvement in the crime does not accomplish much. This court has observed that immunity agreements are 'to be read as a whole and given a reasonable interpretation, not an interpretation that would produce absurd results.' " (Anthony, supra, at p. 581, quoting United States v. Irvine (9th Cir. 1985) 756 F.2d 708, 710.)
In this case, construing the proffer agreement as a whole yields the conclusion that the trial court did not err in admitting the testimony of FBI Special Agent Nancy DeVane regarding defendant's 2004 statements. Two reasons support this conclusion:
First, the state was not a party to the proffer agreement that was made only between defendant and the United States Attorney's Office. The proffer expressly limits its applicability to a "prosecution brought against [defendant] by the Office" of the United States Attorney. Consequently, the state did not assume any contractual obligations under the terms of the proffer agreement. (See Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1176 [privity of contract required for claim that a party breached its contractual obligations].) Nor could defendant have reasonably believed the agreement provided immunity from state prosecution given the limitation to prosecutions brought by the United States Attorney. Consequently, the state had no contractual obligation under the proffer agreement to forego reliance on DeVane's testimony.
Second, even if the proffer agreement were binding on the state, the proffer precludes use of defendant's 2004 statements only in the prosecution of crimes he disclosed in those statements. Nothing in the proffer agreement purported to give defendant immunity from use of his statements in the prosecution of future criminal offenses. The proffer declares the "Office may use any statements made by Client and any other information derived directly or indirectly from the meeting for the purpose of obtaining leads to other evidence, which evidence may be used by the Office in any stage of a criminal prosecution."
Here, defendant received the benefit of the bargain in the proffer agreement because he was not prosecuted for his participation in the 2004 bank robberies. The plain meaning of the proffer agreement compels the conclusions it did not bind the state or limit the use of his statements in the prosecution of future crimes. Consequently, the trial court did not err in admitting the testimony of DeVane regarding defendant's statements made under the terms of the proffer agreement.
C.
Voluntariness
Defendant next argues his statements should have been excluded as involuntary because he did not understand the limited nature of the immunity granted by the proffer agreement. We are not persuaded.
"The Fourteenth Amendment of the federal Constitution and article I, section 7 of the California Constitution make 'inadmissible any involuntary statement obtained by a law enforcement officer from a criminal suspect by coercion.' (People v. Neal (2003) 31 Cal.4th 63, 67; see People v. Jimenez (1978) 21 Cal.3d 595, 611.) 'Voluntariness does not turn on any one fact, no matter how apparently significant, but rather on the "totality of [the] circumstances." ' (People v. Neal, supra, at p. 79; Withrow v. Williams (1993) 507 U.S. 680, 688-690, 123 L.Ed.2d 407.)" (People v. Sapp (2003) 31 Cal.4th 240, 267.) The voluntariness of statements made to law enforcement authorities requires consideration of multiple factors, including any element of police coercion, the length of the interrogation and its location and continuity, and the defendant's maturity, education, and physical and mental health. (People v. Massie (1998) 19 Cal.4th 550, 576.)
Although stated in the context of a custodial interrogation, we draw guidance from the California Supreme Court's explanation that, on appellate review, "[t]he issue of voluntariness presents ' "a mixed question of law and fact that is nevertheless predominantly legal. . . ." [Citation.] Hence " '[o]n appeal, the determination of a trial court as to the ultimate issue of voluntariness of a confession is reviewed independently. . . . [¶] The trial court's determinations concerning whether coercive police activity was present, whether certain conduct constituted a promise and, if so, whether it operated as an inducement, are apparently subject to independent review as well.' [Citation.] However, 'the trial court's findings as to the circumstances surrounding the confession-including "the characteristics of the accused and the details of the interrogation" [citation]-are clearly subject to review for substantial evidence. . . .' " [Citation.]' " (In re Elias V. (2015) 237 Cal.App.4th 568, 577, quoting People v. Jones (1998) 17 Cal.4th 279, 296.)
Here, the gravamen of defendant's contention concerns his understanding of the effect of the proffer agreement at the time he entered the agreement in 2004. In support of the admissibility of the evidence of defendant's 2004 statements, the prosecutor introduced the proffer that showed defendant was represented by an attorney when he entered the agreement. By contrast, defendant's trial attorney did not introduce any evidence concerning the circumstances of defendant's 2004 statements. Accordingly, there is no basis in the record for determining defendant's statements in 2004 were anything other than voluntary and made with advice of counsel. Moreover, "a confession is not involuntary unless the coercive police conduct and the defendant's statement are causally related." (People v. Williams (2010) 49 Cal.4th 405, 437.) Here, there is no causation because there was no promise defendant would not be prosecuted by state authorities that caused defendant to make the statement, nor could he reasonably believe such a promise had been made. For these reasons, we reject defendant's argument that his statements made under the proffer agreement were involuntary.
II
Self-Representation
Defendant argues the trial court committed reversible error in denying his request for self-representation. We reject the argument.
A.
Trial Court Proceedings
In January 2012, the trial court granted defendant's request to represent himself. In November 2012, the trial court revoked defendant's pro per status and appointed defense counsel. On September 5, 2014, defendant appeared with his appointed attorney at a pretrial conference. During the conference, defense counsel requested a five-day continuance of trial from September 12, 2014 to September 17, 2014. Defendant refused to waive his right to speedy trial, but the trial court found good cause to continue based on defense counsel's unavailability. The following colloquy then occurred:
"THE COURT: [¶ . . . ¶] [Y]our attorney indicated that you are giving some thought to representing yourself?
"THE DEFENDANT: Your Honor, this has been like two years trying to get into trial.
"THE COURT: I appreciate where you're coming from. Like I said, it sounds to me like there is no more discovery, there is no more - everything is geared to go on the 17th. [¶] So to be honest, because of your situation where you've gone back and forth, I really - I don't think there's - there's basically enough on the record for me to say you've gone with [trial counsel], you're on the eve of trial, you're two weeks away. Actually, less than two weeks away. So the request to . . . represent yourself is untimely."
B.
Right of Self-representation
Under the Sixth Amendment to the United States Constitution, a criminal defendant has the right to right to represent him or herself at trial. (People v. Boyce (2014) 59 Cal.4th 672, 702.) " 'A trial court must grant a defendant's request for self-representation if the defendant knowingly and intelligently makes an unequivocal and timely request after having been apprised of its dangers. [Citations.]' (People v. Valdez (2004) 32 Cal.4th 73, 97-98 (Valdez); accord, Faretta, supra, 422 U.S. at pp. 835-836.) . . . Erroneous denial of a proper request is reversible per se. (McKaskle v. Wiggins (1984) 465 U.S. 168, 177-178, fn. 8, 79 L.Ed.2d 122.)" (Boyce, supra, at p. 702, italics added.) In People v. Valdez (2004) 32 Cal.4th 73, the California Supreme Court held that "the Faretta right is forfeited unless the defendant ' "articulately and unmistakably" ' demands to proceed in propria persona." (Valdez, supra, 32 Cal.4th at p. 99.)
Here, the record does not show defendant requested to represent himself on September 5, 2014. Defendant only expressed his frustration about how long the case was taking to proceed to trial. Although his trial attorney indicated defendant might request to represent himself, it appears defendant's trial attorney informed the court defendant had only given it "some thought." For lack of an unequivocal request by defendant to represent himself, he cannot establish a violation of his Faretta right.
On appeal, defendant contends he did not need to make an actual request because the trial court "understood it as an unequivocal request." We reject the contention. We will not reverse the trial court for failure to grant a request that was not actually made. As the California Supreme Court has made clear, a request for self-representation must be articulate and unmistakable. (Valdez, supra, 32 Cal.4th at p. 99.)
Defendant further contends he could not make a request for self-representation because "the court prevented [him] from making a clearer record." The record does not support this assertion. The reporter's transcript does not show defendant was cut off by the trial court. We will not engage in speculation defendant intended to say anything more than his complaint about the delay in bringing this matter to trial.
For lack of a request for self-representation, we reject defendant's argument he was deprived of his Faretta right.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
MURRAY, Acting P. J. /s/_________
RENNER, J.