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McIntire v. State (2/15/2002) ap-1789
McIntire v. State (2/15/2002) ap-1789
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SEAN MICHAEL McINTIRE, )
) Court of Appeals
No. A-7719
Appellant, )
Trial Court No. 3PA-S95-995 CR
)
v. ) O P I N I
O N
)
STATE OF ALASKA, )
)
Appellee. )
[No. 1789 - February 15, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Palmer, Beverly W. Cutler,
Judge.
Appearances: Eugene Cyrus, Law Office of
Eugene Cyrus, Eagle River, for Appellant. W.
H. Hawley, 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.
COATS, Chief Judge.
MANNHEIMER, Judge, concurring.
Introduction
In 1996, Sean Michael McIntire was convicted of
misconduct involving a controlled substance in the fourth
degree.1 McIntire appealed, alleging several errors. This
court remanded the case back to Superior Court Judge Beverly W.
Cutler to determine whether McIntire waived his right to
counsel.2 On remand, Judge Cutler made additional findings and
concluded that McIntire knowingly and intelligently waived his
right to counsel. McIntire appeals. We conclude that the record
does not establish that McIntire knowingly and intelligently
waived his right to counsel. Accordingly, we reverse his
conviction.
Facts and Proceedings
In 1995, while on probation, McIntire's probation
officer conducted a search of his residence. The search resulted
in the discovery of a marijuana grow operation, and McIntire was
charged with misconduct involving a controlled substance in the
fourth degree. McIntire retained an attorney, Eric Jensen.
Jensen filed several motions, including a motion to suppress the
evidence seized from the residence and to dismiss the charges
because the search was unreasonable. Jensen then, with
McIntire's consent, asked the court for permission to withdraw.
Jensen told Judge Cutler that he and McIntire disagreed about how
to conduct McIntire's defense. Judge Cutler advised McIntire
against representing himself, telling him that although she
understood not wanting to spend a lot of money on a lawyer, it
would make more sense to have a lawyer.
Before Judge Cutler accepted McIntire's waiver, she
gave him two cautions: (1) that McIntire was free to proceed on
his own, but she would not allow McIntire to delay the trial if
he later decided he wanted to be represented by a lawyer; the new
lawyer would have to step into trial without causing any delay
and (2) that a lawyer would be taken more "seriously" than a
person representing himself because a lawyer can get things done
faster and lawyers are treated differently than lay persons.
McIntire initially asked for more time before deciding
whether to proceed on his own but quickly changed his mind. Once
Judge Cutler accepted his waiver, she concluded that "[McIntire
had] been carefully question[ed]," had spoken for himself,
understood the "basic rules" of trial, and was knowingly and
intelligently waiving his right to counsel.
McIntire proceeded pro se and went to trial. McIntire
had assistance from paralegal Rhonda Marcy throughout the pre-
trial and trial process. A second paralegal (or investigator),
Don Lewis Hart, also helped McIntire during trial. Marcy sat at
counsel table during trial, and Hart sat in the gallery
immediately behind counsel table.
McIntire was convicted following a jury trial.
McIntire appealed,3 arguing that he had not knowingly or
intelligently waived his right to counsel as mandated by
McCracken v. State.4 This court agreed that Judge Cutler's
initial inquiry did not satisfy McCracken, but remanded the issue
back to Judge Cutler for further proceedings to determine whether
the record as a whole demonstrated McIntire knowingly and
intelligently waived his right to counsel.5
At the remand hearing, the state attempted to call two
witnesses, Marcy and Hart, to show that McIntire received the
benefit of two non-lawyers at trial, both of whom had extensive
legal experience. The state contended that this assistance
combined with McIntire's past experience with the criminal
justice system was sufficient to show that McIntire had knowingly
and intelligently waived his right to counsel. Both Hart and
Marcy resisted testifying, and ultimately, Judge Cutler quashed
their subpoenas. Judge Cutler then made her findings, concluding
that McIntire had knowingly and intelligently waived his right to
counsel.
Discussion
Under the United States and Alaska Constitutions, a
criminal defendant has the fundamental right to represent
himself.6 Yet whenever a defendant waives his right to counsel,
he gives up an equally important fundamental right - the right to
counsel. He must knowingly and intelligently give up the
benefits of counsel before being allowed to represent himself.7
The Alaska Supreme Court requires that, before allowing a
defendant to waive counsel, the trial judge must explain the
advantages of legal representation in "some detail."8 The trial
judge must determine that the defendant understands the benefits
of legal counsel and the dangers and disadvantages of self-
representation.9
In James v. State,10 we discussed the high level of
scrutiny that a trial court must exercise when a defendant
insists on self-representation. We relied on the Commentary to
the ABA Standards for Criminal Justice in setting out the duties
of a trial judge to determine whether a defendant fully
understands the magnitude of the rights that he or she is
waiving:
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.11
A review of Alaska cases establishes that this court
independently reviews the record to determine whether the
defendant knowingly and intelligently waived counsel; we will not
defer to the trial court.12 We have previously stated that
"[t]he best way to establish . . . [a waiver of counsel] is for
the trial court to conduct a thorough inquiry of a defendant,
along the lines suggested in the Commentary to the ABA Standards
for Criminal Justice."13 But we also concluded that "in some
cases it is possible to ascertain that the defendant made a
knowing and intelligent waiver of counsel from the record as a
whole."14
In Kelly v. State,15 we concluded that, although the
trial court did not conduct an adequate inquiry to determine
whether Kelly waived counsel, the record as a whole established
Kelly made a knowing and intelligent waiver.16 We found this
waiver after considering Kelly's extensive legal experience and
expertise and the fact that Kelly, although in charge of his own
defense, had the benefit of an experienced attorney who played a
significant role in Kelly's defense.17
But Kelly stands alone as the only case where we have
found that the record supported waiver in the absence of a
thorough inquiry by the trial court. This is illustrated in
James v. State.18 In the original James case, we concluded that
the record did not show that the trial court had established that
James understood what he was giving up when he elected to proceed
without counsel.19 But the state argued that James had
considerable prior contact with the criminal justice system and
therefore we should conclude, as we did in Kelly, that James had
knowingly and intelligently waived his right to counsel.20 The
majority of this court concluded that the record did not
establish that James had the legal sophistication that Kelly had
and concluded that the record was not sufficient for us to find
that he knowingly and intelligently waived his right to
counsel.21
After we issued our decision, the state petitioned for
rehearing.22 The state asked to supplement the appellate record
with a transcript of James's initial arraignment in district
court.23 We granted the state's motion to supplement the record
and allowed the parties to file supplemental briefs. The record
of James's initial arraignment showed that the magistrate had
thoroughly informed James of the functions of an attorney and
that James had adamantly refused to allow the court to appoint an
attorney for him, insisting that it was his right to defend
himself.24 Based upon the record as supplemented, we concluded
that the record showed that James knowingly and intelligently
waived his right to counsel following a thorough inquiry by the
magistrate.25
In McIntire's case, the state asks us to find that,
even though the trial court did not make an adequate inquiry to
establish that McIntire knowingly and intelligently waived his
right to counsel, the record as a whole establishes that he did.
The state points out that McIntire had previously pled no contest
to a felony charge with the advice of counsel and had previously
been convicted of seven misdemeanors. He had also been convicted
of eight traffic offenses in the previous eight years. The state
points out that during several of these prior contacts with the
court system, McIntire viewed the court system video tape, which
explains the functions and benefits of counsel in some detail.
The state also points out that McIntire had the assistance of two
paralegals during his trial and argues that McIntire's abilities
at trial showed considerable legal sophistication.
We agree that this is a close case. That is why we
initially remanded the case back to the trial court to give the
state the opportunity to establish that the record showed that
McIntire had waived his right to counsel. But the evidence on
the record supporting the conclusion that McIntire knowingly and
intelligently waived his right to counsel is certainly not as
strong as the record in Kelly. Kelly's legal sophistication was
obvious.26 Kelly also received active and substantial assistance
from an experienced criminal defense attorney.27 McIntire's case
appears to be more like James. James was facing his fourth
felony conviction, had previously pleaded guilty to a similar
felony charge with the advice of counsel, and previously had been
convicted following a jury trial.28 In spite of James's
extensive prior criminal history and experience with lawyers, the
majority of this court concluded that his experience was not
sufficient to support the conclusion that he had sufficient
information to waive counsel.29 It was only after the record was
supplemented to show that James had been specifically informed of
the benefits of counsel and the dangers of self-representation
and that he had insisted in representing himself that we affirmed
James's conviction.30 As Chief Judge Bryner pointed out in his
concurring opinion in the original James case, it is dangerous to
assume that, because a defendant has been represented by
attorneys in the past, he is able to understand and appreciate
the benefits of representation.31
Here, it is less clear that McIntire knowingly and
intelligently gave up the benefits of counsel. The record shows
that McIntire had considerable past exposure to the court system
arraignment video. The record also shows that the video explains
the right to counsel and the benefits of counsel. But the
supreme court has cautioned against relying on a general
explanation of the right to counsel to determine that there has
been a knowing and intelligent waiver.32 In James, it was
reasonable to infer that because of his prior experience in the
criminal justice system, he had been informed of the benefits of
counsel on numerous occasions. But the deciding factor in
James, besides his extensive prior exposure to the court system,
was the fact that the magistrate specifically addressed him
concerning his right to counsel in the particular case and that
he had clearly waived his right to counsel and emphatically
invoked his right to represent himself. McIntire's case presents
no similar waiver on the record.
Although McIntire had considerable contact with the
criminal justice system, the present offense was his first trial
by judge or jury. All of McIntire's prior offenses were
resolved through guilty pleas.
The state points out that McIntire had the assistance
of two paralegals and argues that the record shows that McIntire
did a credible job of defending himself. However, it is
difficult to tell the quality of McIntire's representation from
the record. That is why, in cases where a defendant claims that
his attorney rendered ineffective assistance of counsel, we
refuse to decide those cases without supplementing the record
with trial counsel's testimony.33 Certainly in the past we have
drawn conclusions about a defendant's ability to waive counsel
from the trial record,34 particularly when the record shows that
the defendant was ill-equipped to represent himself. But it is
difficult to tell the nature or quality of a defendant's
representation strictly based on the trial record alone.
Conclusion
Because a full inquiry was not made and the record as a
whole does not clearly demonstrate that McIntire knowingly and
intelligently waived his right to counsel, we REVERSE McIntire's
conviction.
MANNHEIMER, Judge, concurring.
I agree with the result reached by the majority, but I
write separately to clarify my analysis of this case.
Alaska law requires that the record affirmatively
demonstrate a defendant's knowing waiver of counsel. Thus, the
precise question in McIntire's case is not whether McIntire
subjectively understood the benefits of counsel and knowingly
waived them, but instead whether the record objectively
demonstrates this. It does not.
The record suggests that McIntire discharged his
attorney in a dispute over money and litigation tactics:
McIntire apparently wanted to pursue a defense on several fronts
that his attorney did not believe to be warranted, and McIntire's
attorney warned him that such a defense would cost a considerable
amount of money. Instead of inquiring whether attorney and
client could resolve their differences, Judge Cutler granted the
attorney's motion to withdraw after a short colloquy with
McIntire. The judge did not require McIntire to affirmatively
declare that he understood the benefits of counsel and was
willing to proceed without an attorney. Moreover, even though
money appeared to be an issue, the judge did not ask McIntire
whether he wished to apply for counsel at public expense.
I note that we remanded this case to allow the State to
develop a record that might support a finding of knowing waiver.
Potentially, the State could have examined McIntire's attorney or
McIntire, or both, about the conversations leading up to the
attorney's motion to withdraw and McIntire's announcement that he
wished to represent himself. However, the State chose not to
seek this testimony.
For these reasons, I agree with my colleagues that this
record does not adequately demonstrate a proper waiver of the
right to counsel.
I also wish to address one other aspect of the
majority's decision. In the majority's description of Judge
Cutler's colloquy with McIntire, the majority notes that Judge
Cutler told McIntire that lawyers are taken more seriously than
pro se litigants and that courts treat lawyers differently from
non-lawyers. It appears that Judge Cutler's motive for saying
this was benign - i.e., she was trying to dissuade McIntire from
giving up his right to counsel. Nevertheless, I wish to clarify
that this court does not approve of such comments, nor would this
court tolerate a trial judge's giving preference to a litigant
because they were represented by a lawyer.
_______________________________
1 AS 11.71.040(a)(3)(F).
2 McIntire v. State, Memorandum Opinion and Judgment No.
4131 (Alaska App. October 13, 1999).
3 McIntire, Memorandum Opinion & Judgment No. 4131, p.6.
4 518 P.2d 85, 91-92 (Alaska 1974).
5 McIntire, Memorandum Opinion & Judgment No. 4131, p. 6-8.
6 See Faretta v. California, 422 U.S. 806, 821, 95 S.Ct.
2525, 2534, 45 L.Ed.2d 562 (1975); McCracken, 518 P.2d at 91.
7 See Faretta, 422 U.S. at 835, 95 S.Ct. at 2540.
8 McCracken, 518 P.2d at 92.
9 See Faretta, 422 U.S. at 835, 95 S.Ct. at 2540; Gregory v.
State, 550 P.2d 374, 379 (Alaska 1976).
10 730 P.2d 811 (James I), modified on reh'g, 739 P.2d
1314 (Alaska App. 1987) (James II).
11 James I, 730 P.2d at 814 n.1 (quoting 1 ABA Standard
for Criminal Justice 6-3.6 commentary at 6.39-40 (2d ed. 1982
supp.)) (footnotes omitted and alterations made in James I).
12 See James II, 739 P.2d at 1316; see also Evans v.
State, 822 P.2d 1370, 1374 (Alaska App. 1991).
13 James II, 739 P.2d at 1316.
14 Id.
15 663 P.2d 967 (Alaska App. 1983).
16 Id. at 970.
17 Id.
18 James I, 730 P.2d 811.
19 Id. at 814.
20 Id.
21 Id. at 814-15.
22 James II, 739 P.2d at 1315.
23 Id.
24 Id.
25 Id. at 1316.
26 Kelly, 663 P.2d at 969.
27 Id. at 970.
28 James I, 730 P.2d at 819 (Singleton, J. dissenting).
29 Id. at 815.
30 James II, 739 P.2d at 1316.
31 James I, 730 P.2d at 815 (Bryner, C.J., concurring).
32 O'Dell v. Anchorage, 576 P.2d 104, 108 (Alaska 1978).
33 See State v. Jones, 759 P.2d 558, 570 (Alaska App.
1988) (holding a defendant must either supply an affidavit from
his former attorney or show why the attorney will not supply an
affidavit).
34 James II, 739 P.2d at 1316; Kelly, 663 P.2d at 970.
