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THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIE ADAMS, JR., )
) Court of Appeals No. A-3212
Appellant, ) Trial Court Nos. 1JU-S89-133CI/
) 1JU-S87-1272CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1216 - April 10, 1992]
)
Appeal from the Superior Court of the State
of Alaska, First Judicial District, Juneau,
Rodger W. Pegues, Judge.
Appearances: Willie Adams, Jr., pro se,
Seward, Thomas J. Meyer, Assistant Public
Defender, Juneau, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Cynthia
M. Hora, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Charles E. Cole, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
BRYNER, Chief Judge, concurring.
Willie Adams, Jr., was convicted, following a jury
trial, of assault in the second degree, a class B felony. AS
11.41.210. Superior Court Judge Rodger W. Pegues sentenced Adams
to ten years with three years suspended. He also ordered Adams
to serve three years on probation following his release from
incarceration. Adams appeals, raising several issues. We
reverse Adams' conviction.
Adams' main contention on appeal is that Judge Pegues
erred in allowing Adams to waive counsel and to conduct his own
defense at trial. A certain amount of factual background is
necessary for us to discuss this contention.
Michael Todd testified that just before midnight on
December 11, 1987, he was attacked by Adams on South Franklin
Street in Juneau. According to Todd, Adams, whom Todd knew as an
acquaintance, threw him up against a wall, saying that he was
"tired of you white motherfuckers fucking with me." Todd
testified that Adams then pulled a gun and fired two shots, one
of which grazed Todd's back.
Todd testified that Adams then started waving the gun,
giving Todd the opportunity to grab Adams' gun hand. During the
struggle, Adams bit Todd's hand. Todd and Adams then had a
discussion in which, according to Todd, he tried to talk Adams
out of killing him by telling him about his black army friends in
Vietnam. Thereafter, Todd stated, Adams was "talking with me and
getting real chummy. So when he turned [me] loose . . . I just
took off . . . down the street to the police department."
A short time later, the police found Adams and arrested
him. While resisting efforts to be handcuffed, Adams reportedly
stated, "You don't know what you're doing, I'm bad, you're
messing with the wrong guy, I'm going to blow your fucking head
off. . . ." When police patted Adams down, they found a small
handgun and two cartridge clips inside Adams' coat pocket. Near
the scene of the shooting, police recovered a live round and two
spent rounds of ammunition. Adams' blood alcohol level after
arrest was .212% by blood and .336% by urine.
The court appointed the Public Defender Agency to
represent Adams on December 19, 1987. According to Adams' brief
on appeal, Adams first asked the court to be allowed to represent
himself at a preliminary hearing on December 22, 1987. According
to the record, the issue of whether Adams could represent himself
came before the court on March 23, 1988, at a pretrial hearing
before Judge Pegues. At that hearing, the assistant public
defender who was representing Adams stated that Adams wanted to
represent himself with the assistance of consultative counsel.
The public defender informed the court that Adams had represented
himself in prior trials, including one before Judge Pegues in
1986. Judge Pegues indicated that he remembered the trial.
At the state's request, Judge Pegues made inquiries of
Adams to determine whether Adams was able to waive counsel and
wanted to waive counsel under McCracken v. State, 518 P.2d 85
(Alaska 1974). While Judge Pegues was questioning Adams, Adams
started to explain how President Reagan was personally involved
in his case. After listening to Adams, Judge Pegues concluded
that what Adams was saying was incredible. Judge Pegues stated
that Adams was exhibiting symptoms consistent with hallucinations
and delusions. The public defender contended that Adams should
be allowed to represent himself no matter how irrational his
defense. The state expressed concerns whether Adams was able to
knowingly and intelligently waive counsel or to present his
defense in a rational and coherent manner. The parties
ultimately agreed to have Dr. Robert W. Rowland, a psychologist,
perform a mental health examination on Adams.
Dr. Rowland examined Adams and filed a report with the
court. Dr. Rowland wrote:
Mr. Adams is attempting to defend
himself in this action because, according to
him, his attorney did not believe his account
of the incident. . . . Mr. Adams contends he
had contacted the Federal Bureau of
Investigation after he had been shaken down
and robbed by the Juneau Police Department
who he feels masquerade as State Troopers.
He believes that the Federal Bureau of
Investigation has investigated the Juneau
Police Department but is now failing to come
forward. Mr. Adams has contacted the F.B.I.,
the President of the United States, the joint
chiefs of staff and various ambassadors in
order to either have them serve as character
witnesses for him or to press his case about
the "shakedown". . . .
. . . .
Mr. Adams has a previous arrest . . . .
Mr. Adams defended himself against that
charge. . . .
. . . Mr. Adams [is] presented as a
[sic] educated, cooperative black male. . . .
Mr. Adams is fully oriented, alert, his
affect appears somewhat blunted, but not
inappro-priate.
. . . .
Diagnostic impression - delusional
(paranoid) disorder
. . . .
While Mr. Adams appears to have an active
delusional disorder, he may be adequately
compensated to be held responsible for the charges
against him. Due to the delusional process,
however, Mr. Adams may have difficulty acting in
his own defense and will very likely come to
believe that if he is found guilty, it is due to a
conspiracy which will come to include the primary
players in the legal process. A Forensic
evaluation at this time may be in Mr. Adams' best
interest.
A status hearing was held on March 25, 1988. At this
hearing Dr. Rowland stated that he was not particularly expert in
the test for competency to represent oneself. However, Dr.
Rowland verified that, although Adams appeared to meet the
standard for competency to stand trial, because of his delusions,
Adams probably was not competent to waive counsel.
On March 29, 1988, Judge Pegues ordered Adams' commit-
ment for a forensic evaluation to determine his competency to
waive counsel and represent himself. Judge Pegues specifically
asked the report to address, first, whether "Adams is capable of
presenting his allegations in a rational and coherent manner,"
and, second, whether "Adams understands precisely what he is
giving up by not having an attorney represent him at trial."
(Emphasis in original). Dr. David J. Sperbeck, a
clinical psychologist with the Alaska Department of Health and
Social Services, sent the court the results of Adams' forensic
exam on May 9, 1988. Dr. Sperbeck reported:
Mr. Adams is clearly alert and oriented
in all spheres. He is a healthy, well-
groomed, 33-year-old, single black male, who
demonstrated no disturbance of affect or mood
whatsoever. . . . Hallucinations were denied
and were absent. He has an incapsulated, and
apparently delusional, belief in a con-
spiracy by the Juneau Police Department to
fabricate evidence against him in the instant
offense. He believes that this is an ongoing
conspiracy. . . . He functions in the bright-
normal range of intelligence. . . .
. . . .
. . . I do not know . . . the
circumstances surrounding Mr. Adams' prior
contacts with the Juneau Police Department .
. . [, but] [r]egardless of these actual
circumstances, the subject's thinking in
regard to his relationship with the Juneau
Police Department approaches delusional
proportions. For instance, he has apparently
gone so far as to invite the F.B.I. and
various political appointees, including the
President of the United States, to serve as
character witnesses for him, and to assist
him. . . . This type of disordered thinking
may be clinically described as a systematized
delusion since it involves . . . a single
delusion (i.e., Mr. Adams' belief that he has
been singled out for persecution) with
multiple elaborations that are related by the
individual to the original theme. This
is classified as a delusional (paranoid)
disorder. . . .
. . . .
It is, therefore, my opinion that Mr.
Adams is competent to stand trial, and
competent to waive counsel and defend himself
since he has sufficient present ability to
consult with his attorney for advice with a
reasonable degree of rational understanding,
and that he has a rational as well as a
factual understanding of the proceedings, if
not the evidence, against him.
(Emphasis in original.)
Judge Pegues held a hearing on May 18, 1988, on the
issue of Adams' competence to represent himself. Judge Pegues
spoke with Adams to determine if he understood the benefits of
counsel and the disadvantages of representing himself. He tried
to talk Adams out of his decision. Even though he felt that
Adams was delusional, Judge Pegues ruled: "I'm satisfied that
you are insistent on proceeding and you understand what you're
giving up, and the mental health professional says that you are
qualified to do this and competent to make this choice so I have
to abide by it." The judge expressed personal concerns of
whether Adams was competent, but stated that he felt constrained
to follow the recommendation of Dr. Sperbeck.1
As pro se counsel, Adams proceeded to file various
motions with the court. These motions requested often bizarre
court action, such as that "this honorable court . . . pay
attention to itself" and that a federal arrest warrant be issued
for a Greg Love to "prove that the State has been made a fool of
on more than one occasion, the Courts have been contempted,
making a mockery of justice and the American system of Juris
Prudence [sic]." In a motion dated April 29, 1988, Adams
requested contempt charges be brought against:
the STATE OF ALASKA . . . [because] [t]he
STATE is aware the defendant . . . does not
have the time necessary to recall items
irrelavant [sic] to his own well being . . .
[a]nd to do so, anything said cand [sic] be
incoherent because the defendant-witness
cannot address the issue because of the
emotional and mental stress created in
conjunction to his own well being.
In addition to requesting extradition of a Mexican national and
subpoenas for the Director of the F.B.I. and a South American
nun, Adams petitioned the United States Supreme Court to
intervene, calling the trial court corrupt and racist and noting
that "[t]his will prove embarassing [sic] to president Ronald
Reagan, who was notified . . . and yet did not send the Army
troops here as he did to Panama."
Adams was tried before a jury in July 1988. Adams,
with advisory counsel, conducted his own defense, claiming he was
the victim of a police conspiracy to frame him. The jury found
Adams guilty of second-degree assault. Adams also represented
himself, with advisory counsel, at sentencing.
Following his conviction and sentencing, Adams filed
motions that continued to allege a conspiracy to falsely convict
him. Upon receiving these motions, Judge Pegues noted that these
motions were "not intelligible" and obscene, and ordered the
public defender to take over as lead counsel because Adams was no
longer able to follow the rules of court.
The public defender then filed a post-conviction relief
motion in which he alleged that Adams was "too delusional to
represent himself." The court conducted an evidentiary hearing
at which Dr. Sperbeck amplified on his May 1988 report. Dr.
Sperbeck testified that, in May of 1988, Adams was suffering from
"psychosis," "a major mental illness" -- "delusional (paranoid)
disorder." Dr. Sperbeck concluded that Adams was competent to
represent himself because Adams knew how trial procedures worked
and was capable of conforming his behavior to court rules.
However, he stated that while Adams could rationally present his
case, Adams was "delusional with respect to . . . the facts."
Judge Pegues ultimately denied Adams' motion, finding
that Adams had presented his case in a rational manner and had
been intimately familiar with almost all the evidence.
In general, a defendant in a criminal case has the
right to waive counsel and represent himself. Faretta v.
California, 422 U.S. 806, 821 (1975); McCracken v. State, 518
P.2d 85, 91 (Alaska 1974). In McCracken, our supreme court
stated:
Having concluded then that there is a
right to self-representation under our own
constitution, we must illuminate the contours
of that right. The right is not absolute.
In order to prevent a perversion of the
judicial process, the trial judge should
first ascertain whether a prisoner is capable
of presenting his allegations in a rational
and coherent manner before allowing him to
proceed pro se.
Id. The case before us raises the issue of what sort of minimum
capability is necessary before the court may allow a defendant to
conduct his own defense. In Faretta, the Supreme Court stated
that a defendant desiring self-representation does not need to
"have the skill and experience of a lawyer in order competently
and intelligently to choose self-representation." 422 U.S. at
835. From Faretta and McCracken, it seems clear that the average
criminal defendant must be allowed self-representation if the
trial court makes a careful inquiry in which the court determines
that the defendant understands his right to counsel, is
determined to forego that right, and can conduct his defense
without being unusually disruptive. See Burks v. State, 748 P.2d
1178, 1180-82 (Alaska App. 1988); Burks, 748 P.2d at 1183 (Coats,
J., dissenting).
As a starting point, the record establishes that Adams
was suffering from a significant mental illness that manifested
itself in paranoid delusions. These paranoid delusions were
inextricably intertwined with Adams' view of the case and
his ability to understand the evidence against him. The two
psychologists who examined Adams advanced this diagnosis.
Furthermore, Judge Pegues appears to have accepted this
diagnosis. Dr. Rowland found that Adams was delusional and
concluded that, given the delusions, Adams was probably not
competent to waive counsel. Dr. Sperbeck also found that Adams
suffered from a major mental illness -- delusional (paranoid)
disorder. It seems clear from Dr. Sperbeck's testimony that he
concluded that Adams' view of the case was dominated by his
paranoid delusions. Although Dr. Sperbeck concluded that Adams
was capable of representing himself, this opinion seemed to be
based on his assumption that Adams had a right to present his own
defense, no matter how unreasonable or delusional the defense
was, as long as he was able to understand the court proceedings
and cooperate with his attorney. Judge Pegues appears to have
concluded that Adams suffered from paranoid delusions but
apparently deferred to Dr. Sperbeck's conclusion that Adams was
capable of defending himself. Adams' statements and motions also
established that his entire perception of the case was governed
by his paranoid delusions.
We believe that a defendant is not capable of repre-
senting himself at trial when the defendant is suffering from
severe paranoid delusions inextricably intertwined with his
ability to analyze the facts of the case. In reaching this
conclusion, we rely particularly on McCracken and Else v. State,
555 P.2d 1210, 1211-12 (Alaska 1976), which our supreme court
decided two years after McCracken and after the United States
Supreme Court decided Faretta.
In McCracken the court stated, "In order to prevent a
perversion of the judicial process, the trial judge should first
ascertain whether a prisoner is capable of presenting his
allegations in a rational and coherent manner before allowing him
to proceed pro se." 518 P.2d at 91. In Else, the defendant had
waived counsel and entered a guilty plea without counsel. Else
later moved to withdraw the plea, arguing that he had entered the
plea without counsel. In determining that the defendant had
knowingly and intelligently waived his right to counsel, the
supreme court emphasized that the trial judge had read a recent
psychiatric report stating that Else's "thought content seemed
adequately organized with no evidence of delusions or other
psychotic indicators." 555 P.2d at 1212. The supreme court
added that "Else's responses to the trial court's questions were
rational and showed no confusion. There was nothing in the
record which suggested that Else was incapable of presenting his
allegations rationally and coherently." Id. From the discussion
in McCracken and Else, we conclude that defendants who suffer
from paranoid delusions which clearly affect their ability to
perceive the evidence against them are not in a position to
represent themselves.
We also find support for our position in the case of
People v. Burnett, 234 Cal. Rptr. 67 (Cal. App. 1987). In that
case the court concluded that the trial court did not have
sufficient psychiatric information to allow the defendant to
waive his right to an attorney. The court stated:
Realization of the risk of self-representa-
tion necessarily involves an element of sober
self-examination. A defendant who does not
appreciate the extent of his own disability
cannot be fully aware of the risk of self-
representation where the disability
significantly impairs his capacity to
function in a courtroom.
Id. at 75.
We conclude that the record establishes that Adams did
not possess the requisite minimum capability to conduct his own
defense because his paranoid delusions affected his perception of
the evidence and fettered any ability to appreciate the extent of
his own disability. Adams was unable either to be fully aware of
the risk of self-representation or to rationally conceive and
coherently present a defense. In reaching this decision, we are
aware that trial courts face difficult decisions in determining
that a defendant is unable to waive his right to counsel.
Faretta and McCracken make it clear that the average defendant is
capable of making such a waiver. A defendant can be deprived of
the right to represent himself only in the fairly rare
circumstances in which the defendant is unable to present a
rational and coherent defense. However, in this case, Adams did
not meet that standard of minimal capability.
The conviction is REVERSED.
BRYNER, Chief Judge, concurring.
I join in the court's opinion, which, as I understand
it, stands for the limited proposition that a person suffering
from paranoid schizophrenia cannot be permitted to waive counsel
when the person's delusional system encompasses defense counsel
and thus influences the decision to proceed pro se. This
proposition finds support in the case law. See, e.g., People v.
Burnett, 234 Cal. Rptr. 67 (Cal. App. 1987); State v. Bauer, 245
N.W.2d 848 (Minn. 1976).2
Our decision should not be read to suggest that the
standard for determining competency to waive procedural rights
such as the right to counsel differs from the general standard
for determining competency to proceed. The Alaska Supreme Court
has expressly disavowed the existence of such a dual standard.
See Dolchok v. State, 639 P.2d 277, 293 (Alaska 1982).
In the present case, the psychological evaluation
suggested that Adams was mentally competent to proceed and to
waive counsel. Judge Pegues relied on this psychological
evaluation to find that Adams had voluntarily waived his right to
counsel. Adams has not alleged that he was incompetent to
proceed with trial --that is, that he was unable to assist in his
own defense. This court's opinion, while finding that Adams did
not properly waive counsel, has not questioned his competency to
stand trial. Given a single standard for determining competency
to proceed and competency to waive procedural rights, the fact
that Adams' competency to proceed remains unchallenged may seem
inconsistent with our conclusion that the trial court erred in
finding a valid waiver of counsel. However, the inconsistency is
apparent, not real.
The issue of competency is necessarily abstract,
requiring a determination of an individual's theoretical capacity
to make informed and intelligent choices. The psychological
evaluation in Adams' case addressed competency in this abstract
sense, indicating that Adams had the mental capacity to assist in
his own defense and was capable of knowingly and intelligently
waiving counsel.
While competency, in this abstract sense, is a
necessary component of a valid waiver of counsel, it is not in
and of itself sufficient. Before finding a knowing and
intelligent waiver of counsel, a court must determine not only
that the accused is capable of waiving the right to counsel, but
also that he has in fact entered into a knowing and voluntary
waiver of that right. In the present case, upon determining that
Adams was mentally capable of making a knowing and intelligent
decision as to counsel, it was incumbent on the court to go
further and determine whether his decision to represent himself
actually was knowingly and intelligently made. To the extent
Adams' mental illness affected his decision to waive, the court
was required to consider that fact, just as it was required to
consider Adams' mental illness in deciding the broader question
of general competency. Instead of separately determining the
issues of competency and actual waiver, however, the trial court
merged these issues into a single determination of competency.
Our decision reversing the trial court is based not on
the conclusion that Adams was mentally incompetent to waive
counsel, but rather on our finding that Adams did not actually
make a knowing and intelligent waiver in this case, since his
decision to waive counsel was affected by his mental illness. A
review of the record leaves little doubt that Adams' refusal to
accept representation in this case was the product of his
distorted perception that counsel was among those conspiring
against him.
It is noteworthy, moreover, that, in addressing the
issue of competency to waive counsel, the trial court essentially
deferred to the professional judgment of Dr. David J. Sperbeck,
the examining psychologist. In relevant part, Judge Pegues
stated:
[T]he mental health professional says that
you are qualified to do this and competent to
make this choice so I have to abide by it.
(Emphasis added.) The determination of competency, however, is
ultimately a legal matter for determination by the court, not a
medical matter for determination by an expert witness. In my
view, the superior court's deference to Dr. Sperbeck's opinion
amounted to a failure to exercise judicial discretion and, as
such, would independently require reversal. See, e.g., Cano v.
Anchorage, 627 P.2d 660, 663 (Alaska App. 1981).
I find two other aspects of this case sufficiently
troubling to deserve mention, even though neither has captured
the attention of the parties on appeal. First, it does not
appear that Adams ever received an adequate psychiatric
evaluation for purposes of determining his competency to proceed
or to waive counsel. After a preliminary examination of Adams by
Department of Corrections psychologist Robert Rowland yielded
inconclusive results, Judge Pegues referred Adams to the Alaska
Psychiatric Institute for a psychiatric evaluation in accordance
with AS 12.47.100. Adams was evaluated by Dr. Sperbeck, another
psychologist. However, AS 12.47.100 expressly requires an
evaluation by a "qualified psychiatrist," not by a psychologist.
The two disciplines are not interchangeable, and the failure to
comply with the statutory mandate in this case could, in my view,
be deemed plain error.3
Second, I am concerned that the Alaska Public Defender
Agency's representation of Adams in moving for a new trial may
have violated the agency's duty to avoid representation of
conflicting interests. Prior to trial, the assistant public
defender representing Adams took the active and affirmative
position that the superior court should accept Adams' waiver of
counsel as knowingly and intelligently entered. Counsel
prevailed in convincing the court of this view. At the
conclusion of trial, however, the same attorney moved for a new
trial, advancing an argument diametrically opposed to the view he
had previously (and successfully) urged upon the court.
It is difficult for me to understand how Adams' trial
counsel could have maintained any semblance of credibility with
the trial court in advocating a position that was in open
conflict with the position that he had actively and successfully
advocated before the jury reached its verdict. I thus question
whether Adams' trial counsel was capable of effectively
representing Adams' interest in moving for a new trial. Given
our decision to reverse on the waiver issue, it is unnecessary to
resolve the conflict issue. However, I have strong reservations
concerning the propriety of the public defender agency's
continued representation of Adams under these circumstances.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1. Judge Pegues made the following statements on the
record to Adams:
I'm satisfied that you are insistent on
proceeding and you understand what you're
giving up, and the mental health professional
says that you are qualified to do this and
competent to make this choice so I have to
abide by it. I think you're making a grave
mistake.
. . . .
I'm telling you your story is not
credible. You simply come across as a person
who is a) lying, or b) delusional, or c)
both.
. . . .
. . .[T]he problem with this mental
health examination is I don't think they take
your insanity seriously. . . . I'm really
worried that you are more delusional than the
mental health professional thinks. But he's
the mental health professional, and I'm not.
2. The state cites several decisions for the proposition
that other courts have allowed paranoid-schizophrenics to waive
counsel and proceed pro se. None of the state's cases, however,
involves a situation in which the defendant's decision to waive
counsel was the product of the mental illness. See, e.g., People
v. Wright, 525 N.E.2d 1165 (Ill. App. 1988); State v. Hahn, 726
P.2d 25 (Wash. 1986); State v. Evans, 610 P.2d 35 (Ariz. 1980).
3. The broad language of Alaska's guilty but mentally ill
statute, AS 12.47.070, might also be read as authorizing
competency determinations. That statute would permit the
determination to be based on an examination by "at least two
qualified psychiatrists or two forensic psychologists certified
by the American Board of Forensic Psychology." Adams' evaluation
was no more proper under this provision than it was under AS
12.47.100. Although Adams was seen by two psychologists, the
record establishes that only Dr. Sperbeck was a board certified
forensic psychologist. Dr. Rowland was not, and, in fact,
expressed a lack of familiarity with the applicable competency
standard.
