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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STANLEY J. MUTE, )
) Court of Appeals No. A-6472
Appellant, ) Trial Court No. 4BE-95-1287 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1581 - March 27, 1998]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Mary E. Greene, Judge.
Appearances: Scott Jay Sidell, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Stanley J. Mute was convicted of first-degree sexual
assault, AS 11.41.410(a)(1), and second-degree assault,
AS 11.41.210(a)(2), for raping and seriously injuring his
girlfriend. (The superior court merged these counts at Mute's
sentencing.) Mute was convicted of a separate count of second-
degree assault for breaking the arm of his girlfriend's brother
during the same episode.
Mute appeals these convictions on two grounds. First,
Mute asserts that the superior court should have taken action before
trial to replace the assistant public defender who was representing
him. Mute contends that this action was necessary because the
attorney-client relationship had broken down. Second, Mute asserts
that, because the attorney-client relationship had broken down, his
subsequent waiver of his right to testify at his trial was invalid.
We reject both of these contentions.
Mute was represented by Assistant Public Defender Victor
D. Carlson. One week before trial, at calendar call, Mute expressed
dissatisfaction with Carlson: he told Superior Court Judge Mary E.
Greene that he had lost confidence in Carlson's integrity and
competence. When Judge Greene asked Mute to elaborate on this
dissatisfaction, Mute told her that he believed Carlson would not
"object for [him]" and that he did not feel comfortable with
Carlson. Judge Greene informed Mute that these complaints did not
represent a sufficient reason for removing Carlson from the case.
Mute named another local attorney and asked Judge Greene if this
other attorney could be substituted for Carlson, but Judge Greene
told Mute that this was not possible.
This issue arose a second time, just as Mute's trial was
about to begin. Mute again asked Judge Greene to replace Carlson
with some other attorney. Mute complained that Carlson believed he
was guilty, that Carlson had not filed the pre-trial motions that
Mute had requested, and that Carlson had not discussed the defense
strategy with him. Judge Greene again asked Mute to explain the
basis of his dissatisfaction in more detail. However, upon further
questioning, Mute was unable to identify any pre-trial motion that
Carlson had refused to file. Mute also agreed that Carlson had
informed him of the details of the State's evidence and that Carlson
had spoken with Mute to elicit Mute's side of the story.
After hearing Mute's answers, Judge Greene again denied
Mute's request to discharge Carlson:
From what I have heard ..., I don't see
anything that would rise to the level of ineffective assistance of
counsel, even on a prima facie showing. Therefore, I'm going to
deny your motion [for] a different attorney. We'll go forward with
the case. If, at the end, you're still dissatisfied, I'll appoint
another attorney to investigate your claims.
On appeal, Mute contends that Judge Greene should have
honored his request for another attorney because there was a
"complete and irreconcilable breakdown of the attorney-client
relationship". The record does not support this assertion.
Mute may have been unhappy with Carlson's view of the case
and with some of the strategic choices that Carlson made. However,
Carlson was representing Mute under court appointment. Mute did not
have the power to dismiss Carlson, nor did Mute have the right to
have Carlson discharged at will. "[I]ndigent defendants are not
constitutionally entitled to counsel of their choice[.]" Coleman
v. State, 621 P.2d 869, 878 (Alaska 1980).
As this court stated in Monroe v. State, the 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. The due process clauses of
the state and federal constitutions do not guarantee a "meaningful
relationship" between client and his appointed counsel.
Monroe, 752 P.2d 1017, 1020 (Alaska App. 1988), citing Morris v.
Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610
(1983); V.F. v. State, 666 P.2d 42, 46-47 n.5 (Alaska 1983).
The record in Mute's case does not show that relations
between attorney and client had deteriorated to the point where
Carlson was incapable of effective communication or objective
decision-making. Moreover, absent extraordinary circumstances,
Judge Greene was rightfully hesitant to enter into an extended
examination of Carlson's view of the case and his trial strategy,
or to otherwise insinuate herself as referee in the attorney-client
relationship. Judge Greene therefore did not abuse her discretion
when she denied Mute's motion to discharge Carlson. See Coleman,
621 P.2d at 879-880.
(We note that Mute is currently litigating a post-
conviction relief action based on the assertion that Carlson failed
to provide him effective representation.)
Mute's second point on appeal is that, because of the
purported breakdown in the attorney-client relationship, Mute's mid-
trial waiver of his right to testify was invalid. We reject Mute's
argument for two reasons. First, whatever Mute's dissatisfaction
with Carlson's handling of the case, there was no "breakdown" in the
attorney-client relationship as that term has been defined in our
previous decisions. Second, even if there had been a breakdown in
the attorney-client relationship, this would not invalidate Mute's
waiver of his right to testify.
In LaVigne v. State, 812 P.2d 217, 219 (Alaska 1991), the
Alaska Supreme Court declared that "[t]he ultimate decision whether
to exercise the right [to testify at trial or the right to remain
silent] rests with the defendant, not with defendant's counsel."
For this reason, the supreme court established what is now known as
the LaVigne rule. Whenever the defense indicates an intention to
rest without presenting the defendant's testimony, the trial judge
must advise the defendant personally that, regardless of the defense
attorney's advice on this point, the choice whether or not to
testify rests with the defendant. After making sure that the
defendant understands this, the judge must then inquire whether the
defendant voluntarily waives the right to testify. But compare Knix
v. State, 922 P.2d 913, 917-19 (Alaska App. 1996) (indicating that,
when a defendant chooses not to take the stand, a trial judge
complies with LaVigne if the judge clearly notifies the defendant
that it is the defendant's choice whether or not to testify, even
if the defendant then refuses to enter an explicit waiver of the
right to testify).
At Mute's trial, after the State rested, the defense
attorney conferred with Mute and then informed Judge Greene that
(1) Mute had decided not to testify, and (2) the defense would not
be presenting any other witnesses. This announcement prompted Judge
Greene to engage in a LaVigne inquiry with Mute:
DEFENSE COUNSEL: I have just conferred
with my client. He does not want to take the witness stand. He
[also] doesn't want me to call his brother, who is available out in
the hall, to take the witness stand. And we have no other
witnesses, Your Honor.
THE COURT: All right. The law requires
me, Mr. Mute, just to make sure from your own words that you
understand that you have the right to testify if you want to and
that's your choice. Understand that?
MUTE: Your Honor, ... my constitutional
rights have been violated. I would not like to testify.
THE COURT: All right. You understand
that is your right, and yours alone?
MUTE: It is I believe it's my right not
to t...
THE COURT: It is your right.
On appeal, Mute concedes that he appears to have waived
his right to testify, but he asserts that his decision not to
testify was motivated by mistrust of his defense attorney and was
ultimately the product of the irreparable breakdown in the attorney-
client relationship. Mute's argument is premised on a misunder-
standing of the goals of LaVigne.
The LaVigne inquiry is primarily intended to ensure that
a criminal defendant understands that the decision whether or not
to take the stand ultimately rests with the defendant personally,
regardless of what the defendant's attorney may say or advise. Once
a defendant understands this, it is not the trial judge's place to
offer advice regarding this decision or to interrogate the defendant
regarding the wisdom of their decision.
It is true that LaVigne directs trial judges to "make an
on-the-record inquiry ... into whether a nontestifying defendant ...
voluntarily waives his right [to testify]". 812 P.2d at 222. In
other contexts most notably, when a defendant attempts to waive
their right to counsel or their right to a jury trial the trial
judge's duty to obtain a knowing and voluntary waiver from the
defendant may entail close questioning of the defendant concerning
the reasons for, and the possible consequences of, the defendant's
decision. See e.g., Dolchok v. State, 639 P.2d 277, 286 (Alaska
1982); Walker v. State, 578 P.2d 1388, 1389-91 (Alaska 1978);
McGlauflin v. State, 857 P.2d 366, 368-69 (Alaska App. 1993).
However, as this court pointed out in Knix, if LaVigne is read to
require a similar waiver of the right to testify, the opinion
becomes "conceptually troublesome". 922 P.2d at 918 n.6.
When the issue is a defendant's waiver of jury trial or
waiver of counsel, the law provides a "default" solution for
situations in which the judge is not sure whether a defendant's
purported waiver is knowing and voluntary. Knix, supra. If a
defendant fails to enter a voluntary waiver of the right to jury
trial, the case will be tried to a jury. Similarly, if a defendant
fails to enter a voluntary waiver of the right to counsel, the
defendant will be represented by counsel. Id. However, when a
defendant declares that they will not take the stand, but then fails
to provide a "voluntary waiver" of the right to testify, the trial
judge is faced with a dilemma. LaVigne seemingly requires the judge
to secure a voluntary waiver from the defendant before the case can
proceed, but the judge obviously can not order the defendant to
testify.
The right to testify and its corollary,
the right to silence, stand on unique footing. Both are fundamental
and constitutionally enshrined. Neither has been established as
clearly dominant over the other; they are equally vital. Yet one
right is essentially active, while the other is passive: exercise
of the right to testify requires the defendant's active
participation; the right to silence can be asserted by complete
inaction. And the two rights are mutually exclusive. A defendant
cannot simultaneously exercise the right to testify and to remain
silent. The exercise of one right necessarily entails a
relinquishment of the other.
Given the unique nature and relationship
of these corollary rights, a rule actually requiring an on-record,
voluntary waiver of the right to testify leads to a profound
conundrum: what is to be done in the case of a defendant who is
unwilling to knowingly and voluntarily relinquish either the right
to testify or the right to remain silent? There is seemingly
no default option. If a defendant stands mute in the face of a
LaVigne inquiry or expresses continuing confusion over the court's
explanation of procedural rights, a finding of voluntary waiver of
the right to testify might strain law and logic. Yet the trial
court cannot direct the defendant to testify; nor would it be a
palatable alternative to abort the trial a measure that would put
the power of mistrial in the hands of virtually any enterprising
defendant.
Knix, 922 P.2d at 918 n.6.
In Knix, we concluded that "[t]hese hypotheticals ...
counsel against a hasty conclusion that LaVigne should be construed
to hold that knowing and voluntary on-record waiver of the right to
testify will always be required when a criminal defendant declines
to testify." Id. For similar reasons, we conclude that it is not
a trial judge's function under LaVigne to question the defendant
about their reasons for declining to take the stand. A judge must
advise the defendant that the choice rests with them, but the judge
need not question the defendant to make sure that they have fully
considered their options, that they have received competent advice
from their attorney, and that they are making an informed choice.
As Knix points out, the law provides no ready answer, and
prescribes no proper course of action, for a judge who concludes
that the defendant's LaVigne waiver is not "knowing and voluntary".
When a defendant announces that they do not intend to take the
stand, a judge can not order the defendant to testify even if the
judge is convinced that the defendant's decision is based on
incomplete or incompetent advice from defense counsel, or if for any
other reason the judge concludes that the defendant's decision is
hasty or ill-advised.
We therefore hold that, even if Mute's decision to refrain
from testifying was prompted by his distrust of his attorney and his
perception that the attorney-client relationship had broken down
beyond repair, this would not invalidate his LaVigne waiver. The
record shows that Mute understood that the law gave him the right
to decide whether or not to testify. In fact, he affirmatively
asserted his right not to testify. His reasons for doing so are not
proper concerns under LaVigne.
The judgement of the superior court is AFFIRMED.
