Opinion
Court of Appeals No. A-9525.
April 11, 2007.
Appeal from the District Court, Third Judicial District, Anchorage, Gregory J. Motyka, Alex Swiderski, and Brian Clark, Judges., Trial Court No. 3AN-04-12582 CR.
Sharon Barr, Assistant Public Defender, Anchorage, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Daniel M. Garcia, Assistant District Attorney, and Leonard M. Linton Jr., District Attorney, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Joseph C. Saucier Jr. was charged with violating a domestic violence restraining order. Before trial, he informed the district court that he was not happy with his public defender's approach to his case and that he would prefer to represent himself. After questioning Saucier, the district court concluded that his waiver of counsel was knowing and intelligent, and that he was competent to represent himself.
AS 11.56.740(a).
The case proceeded to trial and Saucier was convicted. He now appeals, arguing that his conviction should be reversed because his waiver of counsel was not knowingly made. Having reviewed the record, we conclude that the district court's inquiry was adequate to ensure that Saucier knew what he was doing when he decided to represent himself. We therefore affirm his conviction.
Facts and proceedings
Saucier had a romantic relationship with Mary Moore, and they had a child together. Although that relationship ended more than four years before the incident in this case, Saucier and Moore were still engaged in child-in-need-of-aid (CINA) litigation involving their daughter. Saucier was representing himself in that CINA litigation, and Moore had a public defender.
On September 23, 2004, Moore got a six-month protective order that prohibited Saucier from having direct or indirect contact with her or their daughter. Several months later, on December 28, Saucier took a copy of a court document that Moore had served on him by mail and dropped it off at the Village Inn, where Moore's mother worked, with a handwritten note stating: "Sorry, Mary, December 15, 2004, in court, denied. Thank You." Moore's mother delivered the document to Moore the following day. Moore testified that she found Saucier's note intimidating and frightening. She contacted the police, and Saucier was charged with violating the domestic violence protective order by having indirect contact with Moore.
Saucier was arraigned on January 28, 2005. He was shown a video explaining his rights, including his right to counsel. The magistrate then advised him of the elements the State would need to prove to convict him of violating the protective order, and of the maximum penalty he faced if he was convicted. Saucier entered a plea of not guilty and asked for an attorney. The public defender agency was appointed to represent him and a pre-trial conference was scheduled for March.
At the pre-trial conference, Saucier's public defender indicated that Saucier wanted to proceed pro se, and a representation hearing was scheduled for M arch 14, 2005. At that hearing, Saucier told the court he did not know the law, but that he wanted to represent himself because his attorney had told him that all the evidence he wanted to present at trial was not relevant to the charge against him. District Court Judge Gregory J. Motyka discouraged Saucier from appearing pro se, telling him that if he was not familiar with the rules of court he would get "chewed up" at trial. Saucier changed his mind and decided he would keep his public defender.
Saucier later decided to change his plea, and a change of plea hearing was scheduled for October 11, 2005. At that hearing, Saucier announced that he had decided not to change his plea — that he now wanted to go to trial, and that he wanted to represent himself. A representation hearing was scheduled for October 13. At that hearing, Saucier reiterated his interest in representing himself, and responded favorably to District Court Judge Alex Swiderski's initial suggestion that the public defender act as advisory counsel. But Saucier's public defender stated that she was unwilling to proceed with hybrid representation.
Judge Swiderski then questioned Saucier to establish his competence to represent himself at trial. Judge Swiderski asked Saucier if he knew what the State needed to prove to convict him of violating the domestic violence protective order. Saucier responded that the State would have to prove that he violated the order; he added that his violation of the order was unintentional. Judge Swiderski told Saucier that it sounded like he was explaining his defense to the charge, and he suggested that Saucier talk to his attorney about that possible defense. Judge Swiderski then asked Saucier what a lawyer could do for him during trial. Saucier said that a lawyer could "do a lot more than I could, as far as filing motions and . . . other documents through the court systems to not allow this, allow that, and that type of things that I don't know of." But Saucier added that he did not think he needed help from an attorney in this regard because "I know how to file motions." He also said he knew how to pick a jury and that he could object to evidence. He said he believed that if the district attorney brought up certain issues at trial, that would open the door for the evidence that he would like the court to admit. But he acknowledged that it was ultimately up to the judge to decide what evidence would come in. While Saucier agreed with the judge that it would be helpful to talk to his attorney about these issues, he added that "there's not a lot to this case."
Judge Swiderski then spoke with Saucier and his attorney about their differences of opinion about how the case should proceed. Their responses indicated that Saucier's attorney wanted to object to documents the State was planning to offer at trial, but that Saucier wanted to go to trial immediately and answer all the State's accusations. As Saucier's attorney put it: "Mr. Saucier just — he wants to do what he wants to do. And I think at this point then — it doesn't matter if he has counsel or not, because no matter what I tell him or advise him, he does want he wants to do." She added: "[Saucier] and I get along very well. . . . I don't think it would matter if it were me, or . . . anybody. Mr. Saucier wants very much to take control of this situation."
Judge Swiderski told Saucier that his public defender was a good trial attorney and cross-examiner and that he would be "way out of [his] league" if he proceeded pro se. He told Saucier that his attorney had training and experience that he did not have and that he would have a better chance of a favorable verdict and, if he was convicted, a better sentence if he had an attorney. He strongly urged Saucier to reconsider his decision. Saucier was persuaded by this advice to stick with his public defender.
Within a month, Saucier had changed his mind again and a third representation hearing was set for November 14, 2005, before Judge Motyka, the same judge who had presided over Saucier's first representation hearing. At that hearing, Judge Motyka began an inquiry into whether Saucier was competent to represent himself, but stopped when the prosecutor told him that Saucier had already had a representation hearing before Judge Swiderski. Then, without further inquiry, Judge Motyka noted that he had had previous discussions with Saucier, and he concluded that the case was not complicated, that Saucier had a defense, that he had had plenty of time to think about whether to proceed pro se, and that he was capable of representing himself at trial.
On November 22, 2005, in a pre-trial conference before District Court Judge Brian Clark, Saucier declared that he was being "forced" to represent himself because his attorney had too many cases and wasn't doing anything for him. Saucier said he would like a different attorney. Judge Clark explained to Saucier that his attorney was the public defender agency, and that he did not have the option of choosing a different court-appointed attorney. Judge Clark then reviewed the log notes of prior hearings and concluded that Judge Motyka had ruled on November 14 that Saucier was competent to represent himself. Judge Clark then granted Saucier a continuance so he could prepare for trial.
When the parties met for trial on November 29, 2005, Saucier declared that he was ready for trial — though he later stated that he did not feel one hundred percent ready. He did not ask that his public defender be reinstated. However, he did say that he wanted an attorney but had been forced to proceed pro se because he could not afford to hire one, the attorney appointed to represent him would not fight for him, and the court would not appoint a different attorney.
The jury convicted Saucier of violating the protective order. He appeals. Saucier's waiver of counsel was knowing and intelligent
Saucier argues that his waiver of counsel was not knowing and intelligent. He argues that the court should have explained the benefits of having an attorney and the dangers of self-representation in more detail — especially since he vacillated throughout the district court proceedings in his desire to proceed pro se. He points out that the court never questioned him about his educational background to establish his competence to proceed without an attorney. He also argues that his trial performance supports a finding that he did not know what he was doing when he waived counsel.
Recently, in Gladden v. State, we reiterated the type of inquiry a trial court must make before allowing a defendant to appear pro se in a criminal case:
110 P.3d 1006 (Alaska App. 2005).
Except in the most unusual circumstances, a trial in which one side is unrepresented by counsel is a farcical effort to ascertain guilt. Thus, once a defendant has clearly and unequivocally declared his or her intention to appear pro se, the trial judge must conduct a thorough inquiry into the circumstances surrounding the assertion. . . . This inquiry should be incorporated into the trial record . . . and should include: advising the defendant of the right to counsel and the importance of having counsel; warning the defendant of the "dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open'"; and inquiring into the defendant's educational background, previous experience with criminal trials, and general competence. . . . [T]he defendant must possess the mental competence to understand the dangers and ramifications of self-representation.
Gladden, 110 P.3d at 1009 (quoting James v. State, 730 P.2d 811, 814 n. 1 (Alaska App. 1987) (quoting the Commentary to I ABA Standards for Criminal Justice § 6-3.6, at 6.39-40 (2d ed. 1982))).
The degree of inquiry in any given case "should be tailored to the particular characteristics of the accused, such as his lack of education or language disability, and to the complexities of the legal issues raised by the charge against him."
O'Dell v. Anchorage, 576 P.2d 104, 108 (Alaska 1978).
Considering all the circumstances, an adequate inquiry took place in this case. At arraignment, Saucier viewed a video that explained his rights, including the right to counsel. After viewing this video, Saucier told the magistrate he wanted an attorney, and the public defender agency was appointed to represent him. Saucier then had an attorney for almost ten months, until his third representation hearing, when Judge Motyka granted his request to proceed without counsel.
In his first representation hearing, Saucier changed his mind about representing himself before any substantive inquiry took place. But in the second representation hearing, Judge Swiderski questioned Saucier in some detail. During this inquiry, Saucier acknowledged that an attorney had knowledge and expertise that he did not have. But he told the court he knew how to file motions, he thought he could select a jury, and he knew he could object to evidence. And while he agreed that an attorney would be helpful, he observed that there was "not a lot to this case."
Saucier told the court he had already been through one criminal trial, represented by an attorney. When the court tested his familiarity with court procedures by asking how many peremptory challenges he was entitled to in a misdemeanor case, Saucier correctly answered that he had three. Saucier expressed his understanding that if the State were permitted to present certain types of evidence, the door would open for evidence he wanted the court to admit. But he also acknowledged that it was ultimately the judge who would decide what evidence to let in. And when the court told Saucier that his attorney, by telling him he could not present certain evidence, was simply advising him on what the court was likely to do and that he would have to abide by the court's rulings whether he had an attorney or not, Saucier said he understood that. During this inquiry, it became apparent that Saucier's differences with his attorney boiled down to trial strategy: his attorney wanted to move to exclude documents the State planned to offer at trial, while Saucier wanted to answer all the State's accusations.
At the end of this inquiry, Saucier changed his mind a second time and decided to keep his attorney. Judge Swiderski did not then go on to question Saucier about his educational background. But when Judge Motyka later ruled that Saucier was competent to proceed pro se, he had before him information from which he could reasonably conclude that Saucier was capable of presenting a coherent defense. The case was not a complex one. Saucier understood what the State had to prove to convict him. He had articulated a defense to the State's charge: that he did not knowingly violate the restraining order. He had been through a criminal trial before, represented by an attorney, and had ten prior convictions. He had discussed trial strategy with his public defender. He was at the time representing himself in CINA litigation in superior court. And he had asserted his familiarity with filing motions, objecting to evidence, and picking a jury. Nothing in his responses to the district court suggested that he had difficulty with English or that he was unable to understand the court's inquiry because of some other disability.
Saucier argues that Judge Swiderski did not explain in adequate detail the benefits of having an attorney and the disadvantages of proceeding without one. But in making this argument, Saucier views Judge Swiderski's inquiry in a vacuum. When Saucier elected to proceed pro se, he had been represented by a public defender for almost ten months; during that time, she discussed trial strategy with Saucier, filed a motion to dismiss his case, and negotiated a plea agreement on his behalf. Saucier had been through a criminal trial before and was, at the time, representing himself in CINA litigation. In light of these circumstances, Judge Swiderski opted not to read Saucier a general advisement of the right to counsel. Instead, he questioned Saucier to ascertain whether he understood what the State had to prove to convict him, what he was giving up by proceeding without counsel, the difficulties he would face without counsel, and whether he knew enough about court procedures to put on a coherent defense. Judge Swiderski was thus following our directive that a waiver of counsel be based on "objective indications that the defendant appreciated what he was giving up by waiving his right to counsel in that particular case."
Gladden, 110 P.3d at 1009-10; see also McIntire v. State, 42 P.3d 558, 562 (Alaska App. 2002); O'Dell, 576 P.2d at 108.
We conclude that the record in Saucier's case demonstrates that he was aware of what an attorney could do for him — and, for that reason, was persuaded twice to abandon his efforts to proceed pro se — but that he ultimately cared more about being in charge of his defense than about having an attorney's expertise. Given these circumstances, the district court reasonably could have concluded that nothing would be accomplished by a fourth representation hearing even if Saucier had asked for one — other than establishing, again, that Saucier wanted an attorney who would adopt his trial strategy, regardless of its chances of success.
Saucier argues that his poor performance at trial demonstrates that he did not know what he was doing when he waived his right to counsel. But even assuming for purposes of argument that Saucier's performance at trial was deficient, that is not relevant to our resolution of this appeal. In cases in which we found the court's on-record inquiry inadequate to show a knowing and intelligent waiver, we have gone on to examine other circumstances, including the defendant's performance at trial, to see if the court's failure could be excused in light of the record as a whole. But that is not the circumstance presented in this case.
See Evans v. State, 822 P.2d 1370, 1374-75 (Alaska App. 1991); James, 730 P.2d at 814-15; Kelly v. State, 663 P.2d 967, 969 (Alaska App. 1983).
We have repeatedly emphasized that "[e]xcept in the most unusual circumstances, a trial in which one side is unrepresented by counsel is a farcical effort to ascertain guilt." It is thus predictable that the trial skills of a pro se defendant will be deficient when compared with the performance of a competent attorney. Even so, a criminal defendant has the fundamental right to represent himself, and a court can only deprive a defendant of that right "in the fairly rare circumstances in which the defendant is unable to present a rational and coherent defense." Because the district court's inquiry established that Saucier knew what he was giving up by proceeding pro se, and that he was at least minimally capable of presenting a rational and coherent defense, the court acted properly in allowing Saucier to waive his right to counsel. Saucier cannot now vitiate that knowing waiver by asserting that he put on a poor defense.
Gladden, 110 P.3d at 1009; McIntire, 42 P.3d at 560; Evans, 822 P.2d at 1374; James, 730 P.2d at 814 n. 1 (all quoting the Commentary to I ABA Standards for Criminal Justice, § 6-3.6, at 6.39-40 (2d ed. 1982)).
Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed. 2d 562 (1975); McCracken v. State, 518 P.2d 85, 91 (Alaska 1974).
Adams v. State, 829 P.2d 1201, 1206 (Alaska App. 1992).
Conclusion
Saucier's conviction is AFFIRMED.