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THE COURT OF APPEALS OF THE STATE OF ALASKA
FREDERICK D. MAY, SR., )
) Court of Appeals No. A-4363
Appellant, ) Trial Court No. 3AN-S90-2512CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1305 - July 30, 1993]
)
Appeal from the Superior Court, Third
Judicial District, Anchorage, Mark C.
Rowland, Judge.
Appearances: Randall S. Cavanaugh,
Anchorage, for Appellant. Eric A. Johnson,
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.
COATS, Judge.
Frederick May, Sr. was indicted for one count of first-
degree burglary and one count of third-degree theft. A jury
found him guilty as charged. May now appeals his conviction and
the trial court's denial of his motion for a new trial. We
affirm.
Around 11:30 p.m. on April 26, 1990, Investigator
Larsen of the Anchorage Police Department received a tip from
Earl Morrison, an informant with whom Larsen had dealt in the
past, that Frederick May, Sr. and Frederick May, Jr. were about
to commit a burglary at a house on Bunnell Street. Morrison also
provided a description of the Mays' car and told Larsen that May,
Sr. planned to enter the house while his son stayed in the car.
Larsen and Investigator Holloway picked up Morrison and drove to
Bunnell Street where Morrison pointed out the house that the Mays
intended to burglarize. The officers drove down an alley behind
the house and saw the Mays' car pulling away from the back of the
house. The Mays spotted the officers, attempted to drive away,
crashed, and tried to escape on foot. Larsen apprehended May,
Sr. and subdued him after a struggle. Another officer
apprehended May, Jr.
The officers found three jewelry boxes on the rear seat
of the Mays' car which were later identified as belonging to the
owner of the house, Cleaven Smith. The police observed that the
front door of the house had been kicked in, the back door had
been damaged, and one of the bedrooms had been ransacked. Smith
recognized the Mays and confirmed that they had not been given
permission to enter the house.
Police transported May, Sr. to the police station where
Officer Hill and Investigator Mosher first advised him of his
Miranda rights and then interviewed him. The interview was
recorded on audiotape and videotape. After a brief discussion,
May complained of back pain, and Mosher left the interview room
to telephone May's doctor. Hill continued the questioning until
May said, "I'd like to have an attorney present," at which point
Hill ended the interview and turned off the audiotape. The
videotape continued running. Shortly thereafter, May told Hill
he wanted to speak to Mosher. Hill communicated May's request to
Mosher who returned to the interview room. The following
colloquy then occurred:
Mosher: Okay. Fred, there seems
to be some confusion here. Uh,
Officer Hill just came out and told
me that you were telling him that
you didn't want to say anything
[until] you had an attorney
present. Is that right? That's .
. . why I brought this back in so
that we have that on record. One
way or the other, because if . . .
if that's what you want then fine.
Uh, but he also told me that you
wanted to talk to me. See I'm
required by law because you're in
custody to have this thing going.
May:Okay, that's cool.
Mosher: Okay. So . . .
May: . . . I know that.
Mosher: Okay. So I . . . I just need
your clarification.
May: Uh, huh.
Mosher: Do you want to have
an attorney present first, or do
you want to talk to me about
something?
May: I just want to talk.
May then confessed to the burglary.
May first argues that the police were barred from
responding to his request to re-open discussion until his
attorney was present. May alternatively contends that the
police, before renewing their conversation with him, were obliged
to re-advise him of his Miranda rights. However, May's case is
controlled by Quick v. State, 599 P.2d 712 (Alaska 1979). In
Quick, one of the defendants, William Jackson, initially invoked
his right to counsel, at which point the police ceased
interviewing him. Jackson then recommenced conversation with a
police officer. Although the parties disputed what was initially
said, the transcript was clear that the other officers reentered
the room, and one said, "Now do you want to talk about this thing
or not?" to which Jackson replied, "I'll tell you what I know."
Id. at 721. The police did not re-advise the defendant of his
Miranda rights. The supreme court affirmed the trial court's
decision that the defendant's confession was valid under these
circumstances:
It is undisputed that the police immediately
stopped questioning Jackson as soon as he
requested an attorney. The renewed
conversation was initiated by Jackson. . . .
The transcript indicates . . . that the
police asked him again before questioning
whether he wanted to proceed. He indicated
he was willing to do so. The police actions
were entirely reasonable under the
circumstances, and we agree that Jackson's
statement was admissible.
Id. at 722. The facts in May's case appear to be more favorable
to the state than the facts in Quick because in May's case,
before Officer Mosher resumed questioning May about the offense,
he focused specifically on May's request for an attorney and
established that May did not want an attorney present before
resuming the interview.
May's reliance on Hampel v. State, 706 P.2d 1173
(Alaska App. 1985) and Minnick v. Mississippi, 498 U.S. 146
(1990) is misplaced. In Minnick, the Supreme Court held that,
generally once a defendant invokes his right to counsel, the
police may not interview him without counsel present. However,
the Court reiterated its prior holding that:
an accused who requests an attorney, "having
expressed his desire to deal with the police
only through counsel, is not subject to
further interrogation by the authorities
until counsel has been made available to
him, unless the accused himself initiates
further communication, exchanges, or
conversations with the police."
Id. at 150, quoting Edwards v. Arizona, 451 U.S. 477, 484-85
(1981) (emphasis added). May does not challenge the trial
court's finding that he asked Hill to let Mosher know that May
wanted to speak with him (Mosher). Thus, Mosher's inquiry
concerning May's invocation of his right to counsel was proper
because it was prompted by May's own re-initiation of
communication. Plant v. State, 724 P.2d 536, 540 n.5 (Alaska
App. 1986).
In Hampel, the defendant asked the interrogating
officer about obtaining legal representation. In response, the
officer gave a long, rambling speech emphasizing the obstacles to
obtaining counsel. 706 P.2d at 1175-77. In reversing the trial
court's denial of the defendant's motion to suppress, we stated
that it is improper "when an interrogating officer chooses to
answer a question in a way which the officer knows or should know
will be reasonably likely to discourage the accused from
asserting the right to counsel." Id. at 1181. In May's case,
the interrogating officer did not try to discourage May from
exercising his right to counsel. Instead, as Hampel requires,
the officer merely sought to clarify whether May, in fact, wished
for counsel or whether he wished to speak to the police without
legal representation. Thus, we affirm the trial court's decision
denying May's motion to suppress.
May also seeks to have his conviction reversed because
he had filed a pre-trial grievance with the bar association
against his counsel, a public advocate. May filed the grievance
on July 7, 1990, and the Office of Public Advocacy received
notice of it on August 3, 1990, ten days before calendar call and
seventeen days before May's trial on August 20. May's grievance
was not brought to the attention of the court until he filed a
pro se application for post-conviction relief on September 28,
1990, about one month after trial.
On this record, May has not shown that he was deprived
of effective assistance of counsel. Clearly, the mere fact that
May filed a bar grievance before trial does not establish
ineffective assistance of counsel. To rule otherwise would allow
defendants to freely discharge their counsel and obtain new
counsel without showing good cause for such a charge. This court
has recognized that "[t]he right to effective assistance of
counsel does not encompass the right to reject appointed counsel
and have new counsel appointed in the absence of any showing of
cause for such change." Monroe v. State, 752 P.2d 1017, 1020
(Alaska App. 1988). Thus, the trial court did not err in denying
May's motion for a new trial.
May's conviction is AFFIRMED.
