Opinion
Court of Appeals No. A-8875.
November 1, 2006.
Appeal from the Superior Court, Third Judicial District, Anchorage, Larry Card, Judge. Trial Court No. 3AN-03-10650 CR.
Rachel Levitt, Assistant Public Advocate, Palmer, Joshua Fink, Public Advocate, Anchorage, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
Leroy J. Stansberry was convicted of violating an order to submit to DNA testing, a class C felony. On appeal, Stansberry argues that Superior Court Judge Larry Card erred in allowing him to represent himself at trial because he did not waive his right to be represented by an attorney, that Judge Card erred in instructing the jury to find against Stansberry on elements of the failure to submit to DNA testing charge, and that Judge Card committed plain error by failing to properly instruct the jury on the elements of that offense. We conclude that Stansberry waived his right to counsel. We agree with Stansberry that Judge Card impermissibly told the jury to find against certain elements of the failure to submit to DNA testing charge. But we conclude that because there was no dispute as to the existence of these elements, Judge Card's error was harmless beyond a reasonable doubt. We also conclude that Judge Card did not commit plain error in the instruction that he gave the jury. We accordingly affirm Stansberry's conviction.
AS 11.56.760.
Factual and procedural background
In March of 2003, Stansberry was convicted of theft in the second degree, a class C felony. At the time of Stansberry's conviction, Alaska law only required that a defendant convicted of a crime against a person had to provide a sample for the State's DNA Identification Registration System. But while Stansberry was incarcerated on his theft conviction, the legislature amended the law to require any person convicted of any felony offense under AS 11 or AS 28.35 to submit to a DNA sample. The legislature made the law applicable to persons convicted of a qualifying offense who were still incarcerated or under supervised probation or parole on or after the effective date of the new law, July 1, 2003.
AS 11.46.130.
See Former AS 44.41.035(b) and (j)(1).
Ch. 88, § 5, SLA 2003.
AS 44.41.035(b); see Ch. 88, § 12, SLA 2003.
Trooper David Willson testified that on August 27, 2003, he was assigned to go to the Cordova Center (a correctional facility for prisoners on work programs) to obtain a DNA sample from Stansberry. Trooper Willson contacted Stansberry there and told him that he was required to provide a DNA sample. Stansberry refused, and Trooper Willson explained to him that the refusal would result in new charges. According to Willson, Stansberry told him that he was very aware that his actions would result in new charges, and he told Willson "to go ahead and charge him."
Stansberry testified that Trooper Willson approached him at the Cordova Center and asked him to provide a DNA sample. He conceded that the trooper told him that if he did not give a DNA sample, he would be charged with failing to provide the sample. Stansberry told the trooper that he should call Stansberry's attorney.
At the conclusion of the trial, the jury convicted Stansberry of refusing to provide the DNA sample. Stansberry now appeals.
Why we conclude that Stansberry waived his right to counsel
Although a defendant has a constitutional right of self-representation, the law discourages defendants from waiving their right to counsel. Accordingly, before a waiver of counsel will be valid, the record must show (1) that the judge affirmatively apprised the defendant of the benefits of counsel and the dangers of self-representation, and (2) that, after receiving these warnings, the defendant affirmatively waived the right to counsel.
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, 89, 91 (Alaska 1974).
Gladden v. State, 110 P.3d 1006, 1009-10 (Alaska App. 2005).
Id. at 1009-12.
In the present case, Stansberry made it clear that he wanted to dismiss his court-appointed counsel. At various times, Stansberry spoke of representing himself, but he also spoke of hiring private counsel. In an effort to help Stansberry make this decision, Judge Card affirmatively advised Stansberry of the benefits of counsel and the dangers of self-representation. Stansberry, however, never expressly committed himself to either hiring a new attorney or representing himself. Stansberry showed up for his trial unrepresented, and he proceeded to defend himself.
As explained above, a valid waiver of the right to counsel requires both (1) warnings about the benefits of counsel and the dangers of self-representation, and (2) an affirmative waiver of the right to counsel. The first requirement is clearly satisfied in Stansberry's case; Judge Card gave Stansberry a detailed explanation of the benefits of counsel and the dangers of self-representation. The remaining question is the second requirement: the affirmative waiver of counsel.
Although most cases involve a defendant's express waiver of counsel on the record, the law recognizes that a defendant can waive the right to counsel by inaction — that is, by failing to procure counsel after being apprised of (1) the benefits of counsel and the dangers of self-representation, (2) the availability of court-appointed counsel for defendants of limited means, and (3) the need to procure counsel by a specified trial or hearing date.
See Gottschalk v. State, 602 P.2d 448, 451 (Alaska 1979), cert. denied 447 U.S. 920, 100 S.Ct. 3010, 65 L.Ed.2d 1112 (1980); Crane v. State, 118 P.3d 1084, 1093 (Alaska App. 2005).
We conclude that the facts of Stansberry's case establish his waiver of counsel through knowing inaction.
Judge Card did not commit plain error in commenting to the jury on the elements of the offense
Judge Card instructed the jury on the offense of violating an order to submit to DNA testing as follows:
First, that the event in question occurred at or near Anchorage, Alaska and on or about August 27, 2003;
Second, that Leroy J. Stansberry was previously convicted of an offense that required DNA testing under the provisions of AS 44.41.035;
Third, that Leroy J. Stansberry was incarcerated on or after July 1, 2003; and
Fourth, that a juvenile or adult correctional, probation, or parole officer or peace officer requested Leroy J. Stansberry to provide an oral sample and Leroy J. Stansberry knowingly refused to do so.
Stansberry argues that the instruction was deficient because the jury was not instructed that it had to find that the offense for which Stansberry was incarcerated on August 27, 2003 was the same offense for which Stansberry was required to submit a DNA sample. But Stansberry never raised this argument at trial, so he must establish plain error.
We do not find plain error. The record establishes that Stansberry was convicted of theft in the second degree, a class C felony. The record also establishes that Stansberry was still incarcerated on this offense at the Cordova Center on August 27, 2003. Stansberry never contested this at trial and does not contest it on appeal. Therefore, Stansberry has not provided us with any reason to find plain error.
Judge Card's oral instructions to the jury at trial
Stansberry's main contention at trial was that Trooper Willson had no right to ask him to provide a DNA sample. During Trooper Willson's testimony, Stansberry asked the trooper whether Stansberry's previous judgment of conviction stated that Stansberry was required to provide a DNA sample. Judge Card told the trooper not to answer, and stated:
The law was at the time that Mr. Stansberry was in custody [was] that if he had been convicted of a felony on the date the law which came in effect around July 1st of 2003, he was required as a matter of law to give a DNA sample. The judgment that the court issued has no bearing on that. It's a matter of law. The legislature provides the law, the court must follow the law.
Stansberry then asked Trooper Willson whether he ordered Stansberry to provide a sample. Judge Card stated:
Ladies and gentlemen, Mr. Stansberry is confused. The law in the State of Alaska, which we all m[u]st follow, required that Mr. Stansberry give a DNA sample. This trooper had no bearing on that. He is not the judge. He is not the legislature, he follows the law. He is a peace [officer].
Stansberry asked Trooper Willson about the law allowing him to collect a DNA sample. The State objected, and Judge Card stated:
I'm going to advise the jury once again that the law required at the time Mr. Stansberry was in custody, and I don't want you to hold it against Mr. Stansberry because he was in custody. It has nothing to do with this other than the fact that it's a part of the case, that he was required to give a DNA sample as a matter of law, not the trooper, not the judge, it's the legislature, which represents the people of this state. . . . We're not going to get into questions of law, Mr. Stansberry. I give — I give instructions on the law.
Later, Stansberry asked Trooper Willson whether Stansberry had a right not to give a DNA sample and the State again objected. Judge Card stated, "Okay. This will be what the jury decides. As a matter of law . . . Mr. Stansberry had been convicted of a felony, and he was required to give a DNA sample upon request on the date in question. So it is not for the trooper to answer the question."
Although Stansberry did not object to any of Judge Card's remarks and instructions to the jury, he now argues that the judge committed plain error by essentially telling the jurors that they were required to resolve various issues of fact against Stansberry: in particular, the fact that Stansberry was in custody when the trooper came to see him, and the fact that the trooper was a peace officer. He argues that Judge Card erred in telling the jury that Stansberry was required to submit to DNA testing.
A trial judge has the authority to instruct the jury on issues of law. Thus, Judge Card could lawfully have told the jurors that if the government proved the factual assertions mentioned in the preceding paragraph, and that the trooper asked Stansberry to submit to DNA testing, then (as a matter of law) Stansberry was required to submit to the DNA testing. But Judge Card did not phrase his remarks in this conditional fashion. This was error.
Smallwood v. State, 781 P.2d 1000, 1002-03 (Alaska App. 1989).
However, we do not find that this error qualifies as "plain error" — because, under the facts of Stansberry's case, the error did not manifestly prejudice the fairness of the proceedings.
Id. at 1003.
The essential facts were undisputed at Stansberry's trial. These included the fact that Stansberry was imprisoned on the day in question, the fact that the trooper was a peace officer, and the fact that the trooper asked Stansberry to submit to DNA testing. Stansberry did not raise any question about these facts. Instead of disputing these facts, Stansberry raised two legal contentions at his trial: he argued that he was not obliged to submit to DNA testing because his criminal judgment did not expressly mandate this testing, and he argued that he was entitled to delay the testing until he had consulted an attorney.
Accordingly, even though Judge Card made improper comments to the jury about the case, we conclude that this error does not require reversal of Stansberry's conviction.
In cases where a constitutional right has been denied, plain error results unless the defect is harmless beyond a reasonable doubt. We conclude that the error was harmless beyond a reasonable doubt. The fact that Stansberry had been previously convicted of an offense that required him to submit to a DNA test, that he was incarcerated on that offense on August 27, 2003, that Trooper Willson was a peace officer, and that Trooper Willson requested Stansberry to provide a DNA sample on that date were facts that Stansberry did not and does not contest. We accordingly conclude that Judge Card's comments to the jury were harmless beyond a reasonable doubt.
Martin v. State, 517 P.2d 1399, 1402 (Alaska 1974).
Conclusion
We AFFIRM Stansberry's conviction.