|
You can of the Alaska Court of Appeals opinions.
|
|
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
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| TARIEK OVIUK, | ) |
| ) Court of Appeals No. A-9572 | |
| Appellant, | ) Trial Court No. 3PA-05-167 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2155 - April 4, 2008] |
| ) | |
Appeal from the
Superior Court, Third Judicial District,
Palmer, Eric B. Smith, Judge.
Appearances: Sharon B. Barr, Assistant Public
Defender, and Quinlan G. Steiner, Public
Defender, Anchorage, for the Appellant. W.
H. Hawley, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Tariek Oviuk appeals his convictions for attempted
first-degree murder1 and second-degree assault.2 Before Oviuks
trial began, Superior Court Judge Eric B. Smith ordered that
Oviuk be shackled during the trial. Then, because of his
decision on the shackling issue, Judge Smith denied Oviuks
request to represent himself. The judge concluded that the
shackling would make it difficult for Oviuk to move around the
courtroom and present an effective defense.
On appeal, Oviuk challenges both the shackling ruling
and the self-representation ruling. We conclude that we need not
resolve the shackling issue because, even assuming for purposes
of argument that Judge Smith was justified in ordering the
shackling, Judge Smith erred when he denied Oviuks request for
self-representation on this basis. Under the Sixth Amendment to
the United States Constitution as interpreted in Faretta v.
California,3 and under article I, section 21 of the Alaska
Constitution as interpreted in McCracken v. State,4 it was Oviuks
choice whether to persist in asserting his right to represent
himself despite the problems that the shackling would pose.
How the shackling issue and the self-
representation issue were litigated in the
superior court
The self-representation issue arose on the day
that Oviuks trial was scheduled to begin. When the parties
assembled in court, Oviuks attorney told Judge Smith that
Oviuk wanted to represent himself. In response, Oviuk told
Judge Smith that what he really wanted was a different
attorney. But Oviuk stated that, if the court would not
give him a new attorney, then he would like to represent
himself.
Judge Smith cautioned Oviuk about the dangers of
self-representation. Oviuk responded by stating that he
still wished to represent himself if the trial could be
delayed so that he would have more time to prepare.
At this point, Judge Smith stated that he would
convene a closed hearing so that Oviuk could air his
complaints about his attorney. Hearing this, the
prosecutor told Judge Smith that the State would be
requesting that Oviuk be shackled during the trial, and
that Judge Smith should consider this [w]hen ...
considering whether Mr. Oviuk is going to be representing
himself.
Following the closed hearing, Judge Smith
concluded that Oviuk had not presented adequate grounds to
be appointed a different attorney. Judge Smith told
Oviuk that his current attorney would continue to represent
him unless Oviuk decided to represent himself. Oviuk
responded that, if Judge Smith would give him a
continuance, he would represent himself.
At the prosecutors request, a state trooper
assigned to Judicial Services offered an explanation to
Judge Smith about the need to have Oviuk shackled during
the trial. The trooper set out reasons why he believed
that, at a minimum, Oviuk should be ordered to wear leg
shackles.
Judge Smith stated that, although he had concerns
about Oviuks ability to represent himself on such serious
charges, he believed that Oviuk, with assistance from a
standby counsel, could represent himself. But the judge
indicated that, because of the security concerns, he was
going to deny Oviuks request to represent himself.
At this point, Oviuks attorney asked Judge Smith
to reconsider the shackling issue. Judge Smith decided to
hold another hearing on the shackling issue the next
morning, before jury selection. Judge Smith then added,
[T]o be perfectly fair to Mr. Oviuk, if ... I conclude that
we dont have a courtroom security issue, then I would be
prepared to let Mr. Oviuk represent himself.
The next morning, at the hearing on the shackling
issue, a state trooper again explained the basis for the
States request to have Oviuk shackled during the trial. At
the conclusion of the hearing, Judge Smith reconfirmed his
decision that it was necessary to shackle Oviuk. Judge
Smith then declared that, because of the shackling, he had
decided to deny Oviuks request for self-representation.
The judge pointed out that the shackling would make it
difficult or impossible for Oviuk to move around the
courtroom. Judge Smith also declared that it would be
inappropriate for Oviuk to cross-examine the victim of the
assault (Oviuks girlfriend):
The Court: Given the issues revolving
around the victim, given ... Mr. Oviuks
history of not being able to comply with
court orders, given the dynamic in a domestic
violence situation and the [particular]
history between Mr. Oviuk and the alleged
victim in this case, and ... the deference
that I must pay to the Judicial Services
evaluation of a particular defendant, Im
going to authorize the shackling in this
case. I had previously ruled that ... the
shackling ... would preclude Mr. Oviuk from
representing himself, [because] it would be
very difficult for him to present an
effective defense, because he couldnt walk
around the courtroom. He couldnt approach
the witnesses; he couldnt approach the jury.
And the cross-examination of the victim would
be rife with the potential for mistrial. ...
[I]t would be utterly inappropriate for Mr.
Oviuk to cross-examine the alleged victim.
It just would be a situation rife with the
possibility of disruption.
Why we conclude that Judge Smith erred when
he denied Oviuks request to represent himself
Under both the federal and state
constitutions, a criminal defendant has a
constitutional right to self-representation.5
A defendant who chooses to
represent himself or herself takes on a
difficult task. And, before a judge allows a
defendant to exercise the right of self-
representation, the judge must first inform
the defendant of the dangers of self-
representation and must explain the
advantages of the assistance of counsel.6
But once a judge is assured that
the defendant understands the dangers of self-
representation and the advantages of counsel,
the court can deny the defendants request
only if the defendant is not minimally
capable of presenting their case in a
coherent fashion ... [or] if the defendant is
not capable of conducting their defense
without being unusually disruptive.7
Here, after Judge Smith explained
the dangers of self-representation and the
advantages of counsel, Oviuk persisted in his
desire to represent himself if he could
obtain a delay of the trial. Based on Oviuks
responses, and on his other observations of
Oviuk, Judge Smith concluded that Oviuk was
capable of representing himself with the
assistance of standby counsel. And, although
Judge Smith never explicitly stated that he
was willing to give Oviuk more time to
prepare, the judge declared that he would
have granted Oviuks request for self-
representation but for the ruling on the
shackling issue.
Thus, the record shows that Judge
Smiths sole basis for denying Oviuks request
for self-representation was the fact that
Oviuk would be shackled during the trial.
This was error.
Judge Smith was justifiably
concerned about the fairness of a trial in
which the defendant appears shackled to the
jury. As the Sixth Circuit remarked in Lakin
v. Stine,8 When a shackled defendant
represents himself, the jury is faced with a
constant reminder that the defendant is
shackled as he makes statements, questions
witnesses, and introduces evidence.9
Therefore, when a defendant who is to be
shackled at trial indicates that he wishes to
waive his right to counsel and exercise his
right of self-representation, it is incumbent
on the trial judge to explain the added
difficulties and potential prejudice that the
shackling will pose before the judge accepts
the defendants waiver of the right to
counsel.10
Nevertheless, it is the defendants
decision whether to persist in self-
representation despite the shackling. Judge
Smith committed error when he ruled that the
fact of shackling, standing alone, was a
sufficient basis to end all inquiry and to
deny Oviuks request to represent himself.
The State argues that we should
uphold Judge Smiths decision on the ground
that Oviuks request to represent himself was
untimely. The State concedes that Judge
Smith did not deny Oviuks request on this
ground, but the State points out that we have
the authority to affirm a trial courts ruling
on any legal theory established by the
record.11
We acknowledge that a defendant may
not invoke the right of self-representation
as a means of disrupting the judicial
process.12 But Judge Smith never made any
such finding, nor did he indicate in any
other fashion that the timing of Oviuks
request was problematical. Without such a
finding, it would be improper for us to
affirm Judge Smiths decision on the basis
suggested by the State.
The State suggests that, even
though Judge Smith never considered the
timing of Oviuks request a problem, the judge
was nevertheless required to deny Oviuks
request for self-representation because it
was made on the first day of trial. The
State contends that, if Judge Smith had
granted the request, his ruling would have
been illegal or, at a minimum, an abuse of
discretion.
It is true that, under the law of
some jurisdictions, a request for self-
representation must be made before trial and
if it is not, it must be denied.13 But,
currently at least, that is not the law in
Alaska. Thus, the State is wrong when it
asserts that Judge Smith would clearly have
abused his discretion if he had granted
Oviuks request.
Conclusion
When a defendant who is to be shackled during
trial asserts his constitutional right of self-
representation, the defendant must be given the
choice whether to persist in self-representation
despite the problems and potential prejudice that
the shackling will pose. It is error for a court
to deny the request for self-representation
based merely on the fact of shackling alone,
without giving the defendant this choice. We
therefore reverse Oviuks convictions.
In so doing, we express no opinion on the
correctness of Judge Smiths decision to order the
shackling. And, if the State chooses to retry
Oviuk, Oviuk shall be allowed to re-litigate this
issue.
The judgment of the superior court is REVERSED.
_______________________________
1 AS 11.31.100(a) and AS 11.41.100.
2 AS 11.41.210(a)(1).
3 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed. 2d 562
(1975).
4 518 P.2d 85, 91 (Alaska 1974).
5 Faretta, 422 U.S. at 821, 95 S. Ct. at 2534; McCracken,
518 P.2d at 89-91.
6 See Martinez v. Court of Appeal of California, Fourth
Appellate Dist., 528 U.S. 152, 162, 120 S. Ct. 684,
691, 145 L. Ed. 2d 597 (2000); Gladden v. State, 110
P.3d 1006, 1009-10 (Alaska App. 2005); James v. State,
730 P.2d 811, 813 (Alaska App. 1987).
7 Lampley v. State, 33 P.3d 184, 189 (Alaska App. 2001)
(citations omitted).
8 431 F.3d 959 (6th Cir. 2005).
9 Id. at 965.
10See Abdullah v. Groose, 44 F.3d 692, 695 (8th Cir. 1995),
revd en banc on other grounds, 75 F.3d 408, 410 (8th
Cir. 1996).
11See, e.g., Vaska v. State, 135 P.3d 1011, 1019 (Alaska
2006); State v. Joubert, 20 P.3d 1115, 1118 (Alaska
2001).
123 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin
S. Kerr, Criminal Procedure 11.5(d), at 753-54 (3d ed.
2007).
13See Martinez, 528 U.S. at 161-62, 120 S. Ct. at 691
(citing John F. Decker, The Sixth Amendment Right to
Shoot Oneself in the Foot: An Assessment of the
Guarantee of Self-Representation Twenty Years after
Faretta, 6 Seton Hall Const. L. J. 483, 544-50 (1996)).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
