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THE COURT OF APPEALS OF THE STATE OF ALASKA
EMMETT W. EVANS, )
) Court of Appeals No. A-3065
Appellant, ) Trial Court No. 3KN-S88-1465CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1176 - November 22, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District, Kenai,
David C. Stewart and James A. Hanson, Judges.
Appearances: Brian Easton, Assistant Public
Defender, Kenai, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Nancy R.
Simel, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Charles E. Cole, Attorney General,
Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Emmett W. Evans appeals a conviction of second-degree
assault that resulted from a jury trial in which Evans
represented himself. Evans argues on appeal that he did not
knowingly and intelligently relinquish his right to counsel. We
reverse.
On November 4, 1988, Evans was indicted for assaulting
another man with a pool cue; both Evans and the alleged victim
were inmates at the state correctional facility in Seward. Kenai
attorney Allan Beiswenger was appointed to represent Evans. On
January 16, 1989, Evans apparently wrote to the superior court
indicating that he was dissatisfied with Beiswenger and that, if
another attorney could not be appointed, he would "just go ahead
and represent himself." Beiswenger then requested a hearing to
determine Evans' competency to proceed without counsel.
At a hearing before Superior Court Judge James A.
Hanson, Evans reiterated his displeasure with Beiswenger and his
intent to represent himself if he could not get another attorney.
In response, Beiswenger stated that the policy in his office was
not to "shuffle attorneys in the event there is a complaint by an
individual who is represented against a specific attorney."
Beiswenger informed the court that he had met twice with Evans.
According to Beiswenger, he had discussed what a lawyer could do
for Evans and Evans was "familiar with what a lawyer can do."
Beiswenger "would take no position as far as the court's
inquiring to determine [Evans'] competency at this point to
represent himself."
Upon inquiry by the court, the prosecution took the
position that the court should make a determination as to Evans'
competency to proceed without counsel. Expressing doubt about
whether there could ever be "a situation where a person would be
competent to represent themselves in a felony offense," the
prosecution suggested that "some sort of co-counsel status should
be worked out" if Evans was not capable of proceeding pro se.
Judge Hanson then addressed Evans personally. The
judge ascertained that Evans had a high school education and had
spent five years in the navy, where he had attained the rank of E-
5 after receiving about eighteen months of training in
electronics. Following his discharge, Evans spent several years
working with the FAA and then worked as a service oiler on the
Transalaska pipeline.
At the time of the hearing, Evans had been in prison
for eleven years, serving a sentence for murder. He had been
represented by counsel in the murder case but had not
participated in his own defense. Since his conviction, Evans
claimed to have spent approximately six months "on and off"
working in the prison library on an appeal, but had not succeeded
in getting it filed.
Judge Hanson asked Evans why he believed that he had
the ability to represent himself. The inquiry led to the
following exchange:
MR. EVANS: Well, I don't believe
I'll adequately represent myself, but
I'll do better than what the appointed
attorney would do for me.
THE COURT: Why do you think so?
MR. EVANS: Well, he wants to sell me
down the road. He wants me to plead
guilty. And I don't feel I'm guilty.
It's up to the jury to -- to decide.
THE COURT: So, his advice has been
for you to plead guilty?
MR. EVANS: Yes.
THE COURT: Did he indicate that he
wouldn't assist you if you didn't plead
guilty?
MR. EVANS: Well, he didn't even read
the records or anything. He just come
out and said, plead guilty.
Pressed further as to whether he knew how to conduct himself at
trial, Evans replied, "To a certain point, yes."
Judge Hanson inquired of Beiswenger concerning the
assertion that he had insisted that Evans plead guilty.
Beiswenger acknowledged that, when he talked with Evans, he had
not reviewed the grand jury tape, although he had reviewed the
police reports and had had an investigator review the grand jury
tape, as well as the police reports. According to Beiswenger, he
and Evans had disagreed about the viability of Evans' self-
defense claim. However, Beiswenger stated that "I obviously did
not tell him that if he chose to go to trial, that I wouldn't do
my best for him." When the court asked Beiswenger if he was
willing to continue assisting Evans if he maintained his
position, Beiswenger answered that he was, "to the extent that
I'm going to be able to given I think feelings of distrust by Mr.
Evans. And -- he feels obviously very strongly about it, Your
Honor."
Judge Hanson then informed Evans that, under the
circumstances, he would not appoint a different attorney. The
judge gave Evans the choice of having Beiswenger or representing
himself. Evans responded: "I'll represent myself then."
Although questioning the wisdom of Evans' decision,
Judge Hanson declared that Evans was "competent, apparently
intelligent, and can do this." The judge directed Beiswenger to
remain present at trial to assist "in any manner that he [Evans]
requests." Judge Hanson expressed the hope that Evans would take
advantage of Beiswenger's presence, but he made it clear that
Beiswenger was not to act on Evans' behalf unless requested to do
so. Before recessing the hearing, Judge Hanson admonished Evans:
I want to emphasize that I strongly believe,
sir -- and I've given you the right to
represent yourself, so this is -- I strongly
believe that anybody who tries to represent
himself has an ass for a lawyer and a fool
for a client. If I were charged -- [I've
had] twenty more -- more than twenty years in
experience in courtrooms as a judge and I've
been a lawyer. If I were charged with the
crime with which you are charged, I would not
attempt to represent myself.
As Evans began to respond, "I don't have the money for a lawyer,
so . . . ," Judge Hanson recessed the hearing.
Two weeks later, Evans proceeded to trial before a jury
presided over by Acting Superior Court Judge David C. Stewart.
Evans' efforts in his own defense at trial were minimal at best.
He did not consult with Beiswenger or ask him to intercede. At
the conclusion of the trial, the jury sent a note to Judge
Stewart, stating:
We feel the defense was not adequate,
that Mr. Evans was not competent to represent
himself, and that he had a difficult time
communicating his point of view. Should that
play a significant part in the basis of our
decision?
Judge Stewart replied, "No." The jury then returned a verdict
finding Evans guilty as charged.
On appeal, Evans, now represented by counsel, argues
that the record fails to establish that he knowingly and
intelligently waived his right to counsel at trial. In
determining the adequacy of Evans' waiver, we are guided by James
v. State, 730 P.2d 811, modified on rehearing, 739 P.2d 1314
(Alaska App. 1987). In James, addressing a claim similar to
Evans', we discussed the type of showing that is necessary before
the trial court may grant a defendant's request for self-
representation:
Under art. I, sec. 21 of the Alaska
Constitution and the Sixth Amendment to the
United States Constitution, a criminal
defendant has the right to represent himself.
Faretta v. California, 422 U.S. 806, 821, 95
S.Ct. 2525, 2535, 45 L.Ed.2d 562 (1975);
McCracken v. State, 518 P.2d 85, 91 (Alaska
1974). However, courts have imposed
protective restrictions on the exercise of
that right because it involves a waiver of
the fundamental right to counsel. A
defendant must knowingly and intelligently
give up the benefits of the right to counsel
before being allowed to represent himself.
Faretta, 422 U.S. at 835, 95 S.Ct. at 2541.
"Although a defendant need not himself have
the skill and experience of a lawyer in order
competently and intelligently to choose self-
representation, he should be made aware of
the dangers and disadvantages of self-
representation . . . ." Id.
The Alaska Supreme Court requires that
the trial court first establish that the
defendant can represent himself in a
"rational and coherent manner" and then
determine whether "the prisoner understands
precisely what he is giving up by declining
the assistance of counsel," before allowing
the defendant to appear pro se. McCracken,
518 P.2d at 91. The trial judge must explain
the advantages of legal representation in
"some detail." Id. at 92. The record must
reflect a clear waiver of the right to
counsel. O'Dell v. Anchorage, 576 P.2d 104,
108 (Alaska 1978); Smith v. State, 651 P.2d
1191, 1194 (Alaska App. 1982).
In addition, Alaska Rule of Criminal
Procedure 39(b)(3) requires the court to
appoint an attorney for an indigent defendant
unless the defendant both proves that he
understands the benefits of having an
attorney and knowingly waives that right.
This rule places an affirmative duty on the
trial judge to determine, on the record,
whether a defendant understands the benefits
of legal counsel. Gregory v. State, 550 P.2d
374, 379 (Alaska 1976).
Id., 730 P.2d at 813-14.
We further noted in James the high level of scrutiny
required on the issue of self-representation by section 6-3.6 of
the ABA Standards for Criminal Justice,1 quoting with approval
the official commentary to that standard:
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.
[Footnotes omitted.]
James, 730 P.2d at 814 n.1 (quoting I ABA Standards for Criminal
Justice 3-3.6 commentary at 6.39-40 (2d ed. 1982)).
In the present case, the superior court's on-record
inquiry of Evans failed to comply with the minimal requirements
set forth in James. Although Judge Hanson addressed at some
length the issue of Evans' competency to waive counsel and
proceed pro se, he did not attempt to describe the benefits of
counsel or confirm that Evans' willingness to proceed without
Beiswenger's assistance was based on an informed view of what
Beiswenger could do to help Evans.2 Nor did the judge attempt to
explain, or inquire into Evans' understanding of, the dangers and
disadvantages of self-representation.3
The inadequacy of the on-record inquiry in this case is
not necessarily dispositive. We have recognized that, in some
exceptional cases, it may be possible to infer a knowing and
intelligent waiver of the right to counsel circumstantially.
See, e.g., Kelly v. State, 663 P.2d 967, 969 (Alaska App. 1983).
Thus, the superior court's decision to allow Evans to assert his
right of self-representation would not be susceptible to
challenge if the record as a whole unequivocally demonstrated a
full awareness by Evans of the benefits of counsel and the
dangers of self-representation. Id.; James v. State, 739 P.2d at
1316.
James v. State again presents a useful point of
reference. In that case, we initially found the on-record
inquiry conducted by the trial court insufficient to establish a
knowing and intelligent waiver of counsel. We reversed on that
basis, despite strong evidence that James had had extensive
experience with counsel in prior cases. On rehearing, however,
the state supplemented the appellate record to include a
transcript of James' arraignment hearing, at which the magistrate
fully explained the functions of an attorney. The transcript of
the arraignment hearing revealed that, after assuring the
magistrate that he understood this explanation, James demanded to
represent himself, insisting that self-representation was his
right and repeatedly refusing the court's attempts to convince
James to consult with a court-appointed attorney before deciding
whether to waive counsel.
After considering the supplemental transcript of the
arraignment, we concluded that, despite the inadequacy of the
court's inquiry at James' subsequent waiver hearing, the record
as a whole demonstrated a knowing and intelligent waiver of the
right to counsel and an informed decision to embark on self-
representation. Id. at 1316.
The record in the present case is not comparable to
that in James. In contrast to James, the record in the present
case contains no convincing indication that Evans has had
extensive experience dealing with attorneys in the criminal
justice system or that he has otherwise independently gained an
understanding and appreciation of the benefits of counsel and the
dangers of self-representation. Apart from Beiswenger's
conclusory representation that he had told Evans what an attorney
can do, we know only that Evans was convicted of murder eleven
years before the present case and that, though represented by
counsel, he did not participate in his own defense. Thereafter,
Evans evidently made limited efforts to work on an appellate
brief in his own case, but did not succeed in filing anything.
Moreover, unlike James, Evans did not affirmatively
insist on his right to self-representation; nor did he
unequivocally reject all representation or refuse to consult with
an independent attorney concerning his decision to proceed pro
se. To the contrary, Evans' willingness to waive his right to
counsel was far more equivocal. Evans made it clear that he did
not want to give up his right to counsel altogether but was only
dissatisfied with Beiswenger, having been discouraged by
Beiswenger's advice to plead guilty.
If anything, Evans' reasons for proceeding without his
attorney called for a heightened level of inquiry:
[C]ourts generally agree that there is
special need for an extensive explanation of
the pitfalls of self-representation where the
defendant states that he has some doubts
about proceeding pro se, but will do so
because the court will not replace appointed
counsel or grant a continuance permitting him
to retain new counsel. While it may be that
the defendant is simply playing a "cat and
mouse game with the court," it also is
possible that a better understanding of the
pitfalls of proceeding pro se may lead him to
choose the option of continuing with his
current counsel.
2 W.R. LaFave & J.H. Israel, Criminal Procedure 11.5(c), at 47
(1984). Considering the record as a whole, we find no
independent evidence to serve as a substitute for the requisite
on-record inquiry concerning the voluntariness of Evans' waiver.
Before accepting Evans' waiver of counsel and his
election to proceed pro se, it was incumbent on the superior
court to inquire into more than just his intelligence, background
and general competency to present his case. The court was
additionally obligated to advise Evans of "the right to counsel
and the importance of having counsel,"4 in order to ensure that
Evans understood "precisely what he [was] giving up by declining
the assistance of counsel."5 Beyond that, the court was required
to make Evans "aware 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.'"6 Here,
as we have already indicated, the record fails to disclose any
advice concerning the right to counsel or the importance of
having counsel, or any inquiry into Evans' understanding of these
matters. The record also fails to disclose advice concerning or
inquiry into the dangers of self-representation.
Because the record does not affirmatively demonstrate a
knowing, intelligent, and voluntary waiver of the right to
counsel, the conviction is REVERSED.
_______________________________
1. Standard 6-3.6 reads, in relevant part:
The defendant's election to represent himself
or herself at trial
(a) A defendant should be permitted at the
defendant's election to proceed in the trial
of his or her case without the assistance of
counsel only after the trial judge makes
thorough inquiry and is satisfied that the
defendant:
(i) has been clearly advised of the
right to the assistance of counsel, including
the right to the assignment of counsel when
the defendant is so entitled;
(ii) possesses the intelligence and
capacity to appreciate the consequences of
this decision; and
(iii) comprehends the nature of the
charges and proceedings, the range of
permissible punishments, and any additional
facts essential to a broad understanding of
the case.
I ABA Standards for Criminal Justice 6-3.6 (2d ed. 1982).
2. In this regard, Beiswenger's conclusory assurance at
the outset of the waiver hearing that he had discussed with Evans
what a lawyer could do for him and that Evans understood is not
an adequate substitute for a detailed, on-record explanation of
the benefits of counsel. Nor could such an assurance replace the
need for an affirmative inquiry by the court as to whether Evans
actually understood the benefits of counsel and was willing to
relinquish those benefits.
3. At the conclusion of the waiver hearing, after
accepting Evans' waiver of counsel, Judge Hanson did make clear
his opinion that Evans was acting foolishly, and the judge
encouraged Evans to consult with Beiswenger, who was to remain
available on a standby basis. Again, however, this advice and
encouragement is not a suitable substitute for a thorough
explanation of the disadvantages of self-representation and an on-
record inquiry into Evans' understanding of those dangers, and of
his willingness to assume the risk of representing himself.
4. I ABA Standards for Criminal Justice, 3-3.6,
commentary at 6.40 (2d ed. 1982).
5. McCracken v. State, 518 P.2d 85, 91 (Alaska 1974).
Ensuring that the accused understands the importance of counsel
comprehends more than an abstract explanation of the function of
counsel. As the Supreme Court made clear in Von Moltke v.
Gillies, 332 U.S. 708, 723-24 (1948), an informed decision to
waive counsel requires a broader inquiry into the accused's
understanding of
the charges and the significance of those charges:
"[The trial court's] protecting duty imposes
the serious and weighty responsibility upon
the trial judge of determining whether there
is an intelligent and competent waiver by the
accused." To discharge this duty properly in
light of the strong presumption against
waiver . . . , a judge must investigate as
long and as thoroughly as the circumstances
of the case before him demand. . . . To be
valid such waiver [of counsel] must be made
with an apprehension of the nature of the
charges, the statutory offenses included
within them, the range of allowable
punishments thereunder, possible defenses to
the charges and circumstances in mitigation
thereof, and all other facts essential to a
broad understanding of the whole matter. A
judge can make certain that an accused's
professed waiver of counsel is
understandingly and wisely made only from a
penetrating and comprehensive examination of
all the circumstances[.]
See generally 2 W.R. LaFave & J.H. Israel, Criminal Procedure
11.3 (1984). See also United States v. McDowell, 814 F.2d 245,
251-52 (6th Cir. 1987) (appendix setting out model interrogatory
from Bench Book for United States District Judges).
6. Faretta v. California, 422 U.S. 806, 835 (1975). In
connection with this requirement, Professor LaFave states:
[T]he trial court should take special care to
advise the defendant as to the pitfalls of
self-representation. Appellate opinions have
suggested that the defendant should be
informed at least as to the following
matters: (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 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 a defendant proceeding
pro se will not be allowed to complain on
appeal about the competency of his
representation; and (5) "that the effective-
ness of his defense may well be diminished by
his dual role as attorney and accused."
2 W.R. LaFave and J.H. Israel, Criminal Procedure 11.5(c), at
45 (1984) (footnotes omitted).
