Summary
holding that defendant's choice between two competing rights — waiving right to counsel or agreeing to a continuance that would have exceeded the 120-day speedy trial limit — was "not sufficient to render the choice constitutionally offensive"
Summary of this case from Alaska Pub. Def. Agency v. Superior CourtOpinion
Court of Appeals No. A-9882.
July 23, 2008.
Appeal from the District Court, Fourth Judicial District, Fairbanks, Raymond M. Funk and Donald D. Hopwood, Judges, Trial Court No. 4FA-06-3593 CR.
Marcia Holland, Contract Attorney, Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Joseph B. Dallaire, Assistant District Attorney, Fairbanks, and Talis J. Colberg, Juneau, Attorney General, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Brian K. Yoder Sr. was convicted of misdemeanor driving while under the influence and first-degree endangering the welfare of a child. He appeared pro se at trial. On appeal, he contends that his waiver of the right to counsel was ineffective. He also asserts that the district court erred by not sua sponte granting a continuance or ordering a mistrial when, during trial, he explained that his former attorney neglected to give him the discovery materials the attorney had received from the State. For the reasons stated here, we affirm Yoder's convictions.
AS 28.35.030(a)(1) (2) and AS 11.51.100(b), respectively.
Facts and proceedings
On September 22, 2006, Yoder was arrested for driving while under the influence. At the time he was driving, a twelve-year-old child was also in the vehicle. Yoder was ultimately charged with driving while under the influence and first-degree endangering the welfare of a child.
Initially, less than a week after Yoder's arrest, the Public Defender Agency was appointed to represent him. The appointment was vacated soon after, however, and the record indicates that Yoder was to hire private counsel. Approximately three months later, after Yoder failed to raise enough money to hire private counsel, the Public Defender Agency was reappointed.
On January 4, 2007, an assistant public defender entered an appearance on behalf of Yoder and filed a request for discovery. But because of the attorney's trial schedule, he was unavailable for trial before 120 days would run from service of the complaint on Yoder.
See Alaska R. Crim. P. 45(b)-(c) (generally, a defendant charged with a felony, a misdemeanor, or a violation shall be tried within 120 days from the date the charging document is served on the defendant).
When he learned that his attorney would not be able to go to trial until the end of January, Yoder declared that he was unwilling to waive Rule 45. District Court Judge Raymond M. Funk told him that under the circumstances, if he did not waive his right under Rule 45, he would have to represent himself. Yoder then told Judge Funk that "I don't want to give up my right to an attorney, . . . nor do I want to give up my right to a speedy trial."
Judge Funk told Yoder that he had to decide which right he was willing to waive. After talking to his court-appointed attorney, Yoder decided to represent himself at trial. Judge Funk then discussed with Yoder the advantages of an attorney and the disadvantages of self-representation, and he cautioned Yoder strongly against self-representation. Despite this discussion, Yoder reaffirmed his decision to proceed pro se rather than waive Rule 45. Although the State voiced concern that Yoder — because he was being forced to choose between two rights — was not providing an "unequivocal" waiver, Judge Funk found the waiver "sufficiently unequivocal."
Trial began the following week with Yoder representing himself. The trial was conducted before a jury and took two days. Senior Superior Court Judge Donald D. Hopwood presided.
During trial, Yoder objected to much of the State's documentary evidence and an audio recording on the ground that he was seeing this evidence for the first time. Although he complained that he had not been provided this evidence before trial, he did not ask for a mistrial, a continuance, or any other remedy.
The State explained to Judge Hopwood that it had disclosed the evidence to the Public Defender Agency, which had formerly represented Yoder. The State also said that it had sent a letter to Yoder explaining how he could obtain copies of the materials if he was representing himself. Yoder responded that the Public Defender Agency had not provided any of the materials to him, and he denied receiving the letter the State claimed it sent. Yoder also said that he went to the District Attorney's Office to get the materials, but because the District Attorney's records showed he was represented, the office directed him to the Public Defender Agency. He also said that he tried to contact the Public Defender Agency before trial to obtain the discovery, but was unsuccessful.
Judge Hopwood found that the State had complied with its discovery obligations, and that the discovery issues Yoder raised during the trial required no remedy that would have changed the course of the trial.
The jury returned guilty verdicts on both charges. This appeal followed.
Discussion Why we find that Yoder's waiver of the right to counsel was effective
Yoder claims, and the State agrees, that he did not voluntarily waive his right to an attorney because he was forced to choose between two competing rights — that is, he waived his right to an attorney only because he did not want to waive his right to a speedy trial. The State also concedes that Judge Funk did not adequately warn Yoder of the advantages of counsel and the disadvantages of self-representation, and thus that Yoder did not make a knowing and intelligent waiver of his right to counsel.
Although a confession of error by the State is entitled to great weight, we must still "independently review the proceedings below to insure that the error confessed is supported by the record on appeal and has legal foundation." Based on our review of the record, we reject the State's concession of error.
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
The record shows that Judge Funk fully advised Yoder of the advantages of counsel and the disadvantages of self-representation, and that Yoder then unequivocally waived his right to counsel.
Yoder's choice was voluntary and unequivocal
Yoder first claims that his waiver was involuntary or equivocal because he was forced to choose between the right to counsel and the right to a speedy trial. Here, Yoder — through no fault of the State or the district court — found himself in a position w here he had to choose between these two rights. Yoder was initially provided with court-appointed counsel but, for reasons not explained in the record, the appointment was vacated and Yoder tried to hire a private attorney. He failed to hire an attorney and on December 20, 2006, the court reappointed public counsel. By this time, approximately 90 days had run under Rule 45, and Yoder's newly appointed attorney had other trial commitments and could not be available for Yoder's trial within the next 30 days.
As a result, Yoder had to decide whether to insist on a trial within 120 days and waive his right to counsel. But the fact that he had to choose, however unwillingly, to proceed without counsel did not make his choice to waive counsel involuntary. The Second Circuit has explained that just because a defendant "did not particularly like the choice presented to him and that he did not want to proceed pro se are not sufficient to render the choice constitutionally offensive."
See James v. State, 730 P.2d 811, 817 (Alaska App. 1987) (citing McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981)) ("It appears beyond doubt that a court may require a defendant to elect between representation by counsel and self-representation within a reasonable time, and make self-representation the default choice without rendering the choice involuntary.").
McKee, 649 F.2d at 931 (quoting Wilks v. Israel, 627 F.2d 32, 36 (7th Cir. 1980)).
Moreover, Yoder's waiver was unequivocal. Yoder told Judge Funk that, "I'm being forced into [waiving my right to counsel] because my attorney's not available. [But] I don't want to waive my right under [the] speedy trial [rule]." He explained that in a prior case he had waived this right and then spent ten months in the Fairbanks Correctional Center because the State had one excuse after another for not going to trial. When Judge Funk asked, "And your decision is — because you don't want to waive one right, it is your affirmative decision today to waive the other right, that is, the right to an attorney?" Yoder said, "[my court-appointed attorney is] not available, so I have no other choice." Yoder emphasized that he would not waive his right to a speedy trial: "That's the last thing I'll ever do." And when Judge Funk asked if Yoder wanted him to dismiss the court-appointed attorney to allow the trial to take place the following week with Yoder representing himself, Yoder said, "That's what I want, yeah."
Based on this record, Yoder unambiguously chose his right to a speedy trial over his right to counsel, and chose to represent himself. Judge Funk did not err when he found that Yoder voluntarily and unequivocally waived his right to counsel.
Yoder's waiver of counsel was knowing and intelligent
Yoder also contends that his waiver of counsel was not knowing and intelligent. Although a defendant has the right to represent himself at trial, the trial court must first establish that the defendant can represent himself in a "rational and coherent manner." The court must also determine whether the accused "understands precisely what he is giving up by declining the assistance of counsel." And the trial court must explain the advantages of legal representation in "some detail."
McCracken v. State, 518 P.2d 85, 91 (Alaska 1974).
Id.
Id. at 92.
Professor LaFave suggests that a defendant should be informed of the following before waiving the right to counsel:
(1) that presenting a defense is not a simple matter of telling one's story, but requires adherence to various technical rules governing the conduct of a trial; (2) that a lawyer has substantial experience and training in trial procedure and that the prosecution will be represented by an experienced attorney; (3) that a person unfamiliar with legal procedures may allow the prosecutor an advantage by failing to make objections to inadmissible evidence, may not make effective use of such rights as the voir dire of jurors, and may make tactical decisions that produce unintended consequences; (4) that there may be possible defenses and other rights of which counsel would be aware and if those are not timely asserted, they may be lost permanently; (5) that a defendant proceeding pro se will not be allowed to complain on appeal about the competency of his representation; and (6) that the effectiveness of his defense may well be diminished by his dual role as attorney and accused.
3 Wayne R. LaFave, Jerold H. Israel, Nancy J. King, Orin S. Kerr, Criminal Procedure, § 11.5(c), at 740-41 (3d ed. 2007) (internal quotation marks and footnotes omitted).
Although Judge Funk did not expressly advise Yoder that he would be unable to complain on appeal about the competency of his representation, the judge adequately addressed all the other areas of concern expressed by LaFave. Judge Funk explained that "[t]he advantage of having a lawyer is you [have] somebody who has a college degree, a law degree, [a] license to practice," and that "[t]he complexities of a DUI trial are such so that the case law basically suggests you'd be an idiot to represent yourself, it'd be a bad decision to do so." He also said that a "lawyer . . . knows how to do the parts of a trial, and . . . you don't."
Judge Funk then made it clear that a lawyer, unlike Yoder, knew how to make an opening statement, how to conduct voir dire of prospective jurors, how to cross-examine witnesses, and how to decide what witnesses to call. The judge told Yoder that a lawyer could advise him on the advantages and disadvantages of testifying at trial. He particularly emphasized that Yoder would be at a disadvantage because he had never before made an opening statement, conducted voir dire, done cross-examinations, considered what witnesses to put on the stand, testified on his own behalf, or determined the advantages or disadvantages of testifying. Judge Funk also warned that Yoder would have to prepare to cross-examine expert witnesses.
Judge Funk explained that a "lawyer would get the police report, talk to you about the law, talk to you about your prior record, see if a plea bargain could be reached[.]" With regard to this last point, Judge Funk explained that "open sentencing with [your] prior [felony convictions], if they appear to be alcohol-related, is likely to greatly increase the sentence if you go forward and go to trial."
Yoder said he understood the advantages of having an attorney. He also acknowledged that he would be "putting [himself] at a tremendous disadvantage by not having a lawyer."
Judge Funk then went on to determine if Yoder would be able to "deal with the parts of the trial." He asked Yoder if he knew how to conduct jury voir dire, and after Yoder said that he didn't know what voir dire meant, Judge Funk explained it. When asked how he would conduct voir dire, Yoder said he'd ask the potential jurors if they worked at the courthouse or in law enforcement — "I would ask them questions like that." Judge Funk warned Yoder that he would only get thirty minutes to ask questions.
Judge Funk also explained that Yoder would then, based on the voir dire, have to an opportunity to exercise peremptory challenges. Judge Funk asked if Yoder knew what an opening statement was, and Yoder said he did — that it was "basically a short discussion of the case."
Funk advised Yoder that one disadvantage of representing himself was a lack of objectivity. He also emphasized that Yoder would be hampered by his lack of knowledge of the rules of evidence and procedure: "One of the main disadvantages of not being a lawyer is . . . if you do things in an objectionable manner — that is, in a manner that's not admissible — you have to figure out, if possible, how to get that stuff in a nonobjectionable fashion. And if you don't, tough. Do you understand that part?" Yoder said he did.
Judge Funk continued to elaborate on this point: "You want to present evidence, and if you can't get it in, that's it. And [the prosecutor] object[s] and I sustain the objection which means, [the prosecutor is] right, [and] we move on to the next question." Judge Funk told Yoder that when the State was questioning its witnesses, Yoder would be responsible for "properly object[ing] to any questions." Judge Funk explained that Yoder would be on his own with regard to selecting and questioning witnesses for his defense, and would have to decide whether to testify on his own behalf. He would also be on his own if he took the stand.
Yoder said that he understood all of this. Judge Funk went on to explain that after Yoder had made all his trial decisions, he would then have to make a closing argument. Judge Funk again advised Yoder that representing himself was an "incredibly bad idea."
At the conclusion of this discussion, Judge Funk found "based on the number of times he's [been] in court, that Mr. Yoder clearly understands the advantages of having a lawyer, clearly understands the disadvantages of not having a lawyer, and is sufficiently equipped to represent himself at trial such that he should be allowed by his choice to represent himself."
Although Judge Funk did not on the record explain in any detail the charges that Yoder faced, Yoder does not claim that he was unfamiliar with the driving while under the influence charge, or that he did not understand the nature of the child endangerment charge. In addition, Yoder's discussion with Judge Funk indicated that he had at least one prior criminal trial, and Judge Funk told Yoder that he should watch a trial before his own trial began. Yoder said that he had seen some trials since coming to the court. Finally, Judge Funk gave Yoder time to discuss his decision with his court-appointed attorney.
We conclude that Judge Funk ensured that Yoder was sufficiently warned of the advantages and disadvantages of proceeding to trial without an attorney. The record shows that Yoder knowingly and intelligently waived his right to assistance of counsel. Why we reject Yoder's claim that the district court should have sua sponte provided him some relief because he did not obtain discovery materials from his former attorney
See Gladden v. State, 153 P.3d 1028, 1030-32 (Alaska App. 2007).
During trial, Yoder pointed out that he had not been given copies of the written calibration reports for the Datamaster used in his case, the Datamaster test strip showing his breath alcohol content, the audio recording of the contact between the arresting officer and Yoder, and evidence of Yoder's independent blood test results. He did not, however, ask for any relief when the State offered these items into evidence.
On appeal, Yoder first argues that Judge Funk, when he advised Yoder about the risks of self-representation, should have ensured that Yoder had received discovery materials from the State or Yoder's former attorney. But the record shows that Yoder acknowledged, when this issue was addressed by Judge Hopwood at the end of trial, that once he chose to represent himself he w as aw are that he had to contact the Public Defender Agency to get his file. He said that he tried to do so, but was unsuccessful. He also tried to get discovery from the District Attorney's Office, but its records showed that he was represented and that the materials had already been provided to his attorney. In other words, even though Yoder was aware that discovery was available and knew what he had to do to obtain it, he did not raise this issue or ask for any relief before trial began. Because he chose to proceed with trial rather than obtain the discovery that he knew was available, Yoder has waived this claim of error.
See Wortham v. State, 689 P.2d 1133, 1142 (Alaska App. 1984) (in case in which there was no evidence of prejudice to the defendant or bad faith by the State, any right to relief for alleged discovery violation by prosecution was waived when defendant, aware that discovery materials were available, elected to go on with the trial rather than make a motion for the material or ask for continuance).
Yoder next contends that Judge Hopwood should have provided Yoder with a continuance or ordered a mistrial when it became obvious that there was a discovery issue. But as already explained, Yoder never asked Judge Hopwood for these remedies. Furthermore, Yoder was not entitled to a continuance or a mistrial because he did not show any plausible way in which his defense could have been prejudiced by these discovery problems. In sum, we find no error.
See Sivertsen v. State, 963 P.2d 1069, 1072 (Alaska App. 1998), disapproved in part on other grounds, 981 P.2d 564 (Alaska 1999); Jurco v. State, 825 P.2d 909, 917 (Alaska App. 1992).
Conclusion
The judgment of the district court is AFFIRMED.