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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| MICHAEL J. JOHNSON, | ) |
| ) Court of Appeals No. A-9800 | |
| Appellant, | ) Trial Court No. 3AN-05-3621 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2178 July 25, 2008 |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Philip R. Volland,
Judge.
Appearances: Marjorie Allard, Assistant
Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant. W.
H. Hawley Jr., 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.
MANNHEIMER, Judge.
Michael J. Johnson appeals his conviction for felony
driving under the influence.1 He first contends that the
evidence presented at his trial was legally insufficient to prove
that he was under the influence at the time he operated the
vehicle (as opposed to later, after the police stopped him).
At trial, Johnson testified that, during the
approximately three minutes between the time the police pulled
him over and the time they ordered him out of the car, he was
surreptitiously taking drinks from a bottle of vodka. Johnson
attributed his poor performance on the field sobriety tests and
his later breath test result .173 percent blood alcohol to
these furtive nips inside the car.
When a defendant challenges the sufficiency of the
evidence to support a criminal conviction, an appellate court is
obliged to view the evidence, and all reasonable inferences to be
drawn from that evidence, in the light most favorable to
upholding the lower courts verdict. In other words, we are to
assess the sufficiency of the evidence in this case by first
resolving all conflicts and doubts presented by the evidence in
favor of the jurys verdict,2 and then asking whether, viewing the
evidence in that light, a reasonable fact-finder could have
concluded that the States case was proved beyond a reasonable
doubt.3
The police officers who conducted the traffic stop in
this case testified that they did not see Johnson drinking
anything following the stop. The officer who made the initial
contact shined a light into the car after the stop. And all
three officers involved in the stop testified that they are
always on guard for any suspicious or potentially threatening
movements by the occupants of a stopped vehicle and that they
would have responded immediately if they had observed Johnson
reaching under the seat.
When we assess the totality of this evidence under the
test described above, we conclude that the evidence was
sufficient to support the jurys conclusion that Johnson was
intoxicated at the time of the traffic stop (as well as three
minutes later).
Johnsons remaining points on appeal involve the
complaints that he made at his sentencing hearing about his
attorneys performance.
At the sentencing hearing, Johnson expressed two
complaints about his attorney. First, he complained that his
attorney had not attended Johnsons interview with the probation
officer who prepared the pre-sentence report. Second, Johnson
complained that, acting without Johnsons knowledge or consent,
his attorney had asked the court to continue the sentencing
hearing for five weeks (from June 12 until July 20). Johnson
told Superior Court Judge Phillip R. Volland that he needed a new
attorney and (as a consequence) a further continuance of the
sentencing hearing, because his current attorney did [this]
without [his] prior approval.
Judge Volland denied Johnsons requests for a further
continuance and for a new attorney. The judge found that
Johnsons attorney had acted properly in seeking a continuance of
the sentencing, even if he had had no chance to consult with
Johnson, because the attorney needed time to review the States
addendum to the pre-sentence report. Judge Volland further
declared that he [did not] see that a change in counsel at this
point would be to Mr. Johnsons benefit, given the fact that
Johnson faced a presumptive term of imprisonment and, thus, the
judges sentencing discretion was quite limited.
In this appeal, Johnson argues that he is entitled to
re-sentencing because Judge Volland did not adequately
investigate the possibility of granting Johnsons request to delay
the sentencing hearing so that he could look for a new attorney.
In past decisions, we have indicated that when
circumstances suggest a disabling conflict between attorney and
client, a judge may be required to investigate and, if the
conflict is proved, take action. See, for instance, our
unpublished decision in Weaver v. State, Alaska App. Memorandum
Opinion No. 3308 (December 20, 1995), 1995 WL 17221357.
But the facts of Weaver are plainly distinguishable
from the facts of Johnsons case. Weaver involved claims that, if
true, would clearly have warranted the appointment of a new
attorney. Johnson offered no such claims.
Johnson told Judge Volland that, when he asked his
attorney to attend the pre-sentence interview, his attorney
replied that he might be able to ... go. Johnson further told
Judge Volland that, when his attorney did not show up for the
interview, the probation officer assigned to write the pre-
sentence report [went] ahead ... with the interview without ...
[the] presence of [Johnsons] counsel. But Johnson never asserted
that he objected to conducting the interview in the absence of
his attorney, or that the probation officer insisted on
conducting the interview despite Johnsons objection that his
attorney was not there.
Moreover, Johnson has not alleged that he was
prejudiced by his attorneys absence, and no prejudice is apparent
from the record. We note that Judge Volland explicitly gave
Johnson the opportunity to dispute any and all facts recited in
the pre-sentence report.
We now turn to Johnsons second complaint about his
attorneys performance: the fact that his attorney asked for a
continuance of the sentencing hearing without consulting Johnson.
As explained above, Judge Volland found that Johnsons
attorney acted appropriately in requesting the continuance, so
that the attorney would have sufficient time to review the States
addendum to the pre-sentence report. Moreover, Johnson has not
alleged (much less shown) that he was prejudiced by the five-week
delay of the sentencing hearing.
Given this record, Judge Volland could reasonably
conclude that Johnson had not raised the kind of grave complaint
about his attorneys performance that would have triggered the
judges duty to conduct a more thorough inquiry.
Johnsons final claim on appeal is that Judge Volland
erred by failing to more fully explain Johnsons option of
representing himself if he was dissatisfied with his attorney.
After Judge Volland denied Johnsons request for a new
attorney and a further continuance of the sentencing hearing, the
following colloquy took place:
Mr. Johnson: I would like to request if
I could, you know, represent myself in this
matter, as I could fill in, you know, myself.
The Court: Mr. Johnson, have ...
Mr. Johnson: I have you know, I have
the paperwork to do the ... [to] reply on the
objections on the sentence memorandum here,
and ...
The Court: Mr. Johnson, ... Ill give
you the opportunity to address anything that
you think is in error in the pre-sentence
report or the addendum, and [the opportunity]
to tell me what you think an appropriate
sentence is in this case and why. You have
the right to do that ... at a sentencing. So
[defense counsel] is not the only one who is
going to be speaking on your behalf. Hell
make the legal arguments, if there [are] any,
and [hell make] suggestions to me. [But]
regardless of what he says, Im going to ask
you [personally] what you think, and you can
tell me then.
Mr. Johnson: Okay.
After Judge Volland clarified these
procedural matters, Johnson never renewed his
request to represent himself.
On appeal, Johnson argues that
Judge Vollands remarks (quoted above) led
Johnson to believe that he was not entitled
to represent himself at sentencing. He asks
this Court to remand his case to the superior
court for an inquiry into whether he would
have preferred to proceed pro se at
sentencing.
There would be merit to Johnsons
request if he had clearly and unequivocally
declared his desire to proceed without an
attorney.4 But here, it appears that Johnson
was simply thinking out loud about this
possibility. After Judge Volland explained
that Johnson would be able to personally
address the court regarding the matters that
concerned him, Johnson did not renew his
request to represent himself.
Johnsons case illustrates the
reason why appellate courts hold that a trial
judge is not obliged to pursue a criminal
defendants request for self-representation
unless that request is clear and unequivocal.
As the Ninth Circuit explained in Adams v.
Carroll, 875 F.2d 1441 (9th Cir. 1989), there
are two primary rationales for this
requirement:
First, it acts as a backstop for the
defendants right to counsel, by ensuring that
the defendant does not inadvertently waive
that right through occasional musings on the
benefits of self-representation. See, e.g.,
Meeks [v. Craven], 482 F.2d [465,] 467 [(9th
Cir. 1973)] ([a] defendant cannot waive right
to counsel by once stating, I think I will
[represent myself].). Because a defendant
normally gives up more than he gains when he
elects self-representation, we must be
reasonably certain that he in fact wishes to
represent himself. See Brewer v. Williams,
430 U.S. 387, 404, 97 S. Ct. 1232, 1242, 51
L. Ed. 2d 424 (1977) (courts must indulge in
every reasonable presumption against waiver
of the right to counsel).
[Second, t]he requirement that a request
for self-representation be unequivocal also
serves an institutional purpose: It prevents
a defendant from taking advantage of the
mutual exclusivity of the rights to counsel
and self-representation. A defendant who
vacillates at trial between wishing to be
represented by counsel and wishing to
represent himself could place the trial court
in a difficult position: If the court
appoints counsel, the defendant could, on
appeal, rely on his intermittent requests for
self-representation in arguing that he had
been denied the right to represent himself;
if the court permits self-representation, the
defendant could claim he had been denied the
right to counsel. See Meeks, 482 F.2d at
468. The requirement of unequivocality
resolves this dilemma by forcing the
defendant to make an explicit choice. If he
equivocates, he is presumed to have requested
the assistance of counsel.
Adams, 875 F.2d at 1444.
Thus, a trial judge has no duty to
fully advise a defendant concerning the right
of representation (and the attendant dangers)
unless the defendant makes a clear and
unequivocal request for self-representation.
Moreover, the cases in this area show that
even when a request for self-representation
appears on its face to be unequivocal, a
judge need not conduct a formal inquiry when
the record as a whole shows that the
seemingly unequivocal request is in fact
tentative.
For instance, in Fields v. Murray,
49 F.3d 1024 (4th Cir. 1995), the defendant
wrote a letter to the judge in which he
stated that he [had] no choice left but to
dismiss ... my coun[sel] and act as my own
coun[sel] at the trial.5 How
ever, other statements in this letter
suggested that Fieldss real interest lay in
personally cross-examining the witnesses
against him, not in proceeding pro se. And
when the court held a hearing to address
Fieldss concerns, Fields did not ask to
represent himself, but rather complained of
too little contact with his attorneys.6 On
appeal, the Fourth Circuit ruled that the
record as a whole supported the trial judges
conclusion that Fields did not clearly and
unequivocally invoke his right to self-
representation.7
Similarly, in Cross v. United
States, 893 F.2d 1287 (11th Cir. 1990), the
court held that even though Cross made the
seemingly unambiguous statement, I want to be
allowed to represent myself through this
whole trial, the trial judge was not obliged
to pursue a full explanation of the right and
risks of self-representation because, in
later statements, Cross clarified that what
he really wanted was permission to act as co-
counsel.8
Likewise, in State v. Carter, 513
A.2d 47 (Conn. 1986), during a complaint
about the performance of his public defender,
the defendant told the trial judge, I am
misrepresented, and now I have to represent
myself.9 A few moments later, Carter
reiterated, Ill have to represent myself.10
But once the judge explained the trial
procedures and offered Carter the opportunity
for further consultations with his attorney,
Carter acquiesced in having the trial proceed
with his appointed attorney.11 On appeal,
the Connecticut Supreme Court concluded that
the record, viewed as a whole, showed that
Carter did not clearly and unequivocally
invoke his right of self-representation, but
rather simply expressed his dissatisfaction
with his appointed counsel and his
misunderstanding of trial procedures.12
See also People v. Tena, 67
Cal.Rptr.3d 412 (Cal. App. 2007), where the
court held that a defendants comments at his
preliminary hearing, Can I go pro per, sir?
Your Honor, may I go pro per? were not
unequivocal requests for self-representation,
given the record as a whole, but rather
impulsive reactions to [the defendants]
frustrated attempts to secure an attorney who
would subpoena the witnesses that he
desired.13
We conclude that Johnsons remarks
to Judge Volland about the possibility of
self-representation fall within this same
category.
Johnson told Judge Volland that he
believed there were errors in the pre-
sentence report. He complained that his
attorney had not been present at the pre-
sentence interview, and that his attorney had
asked for a continuance of the sentencing
hearing without consulting him. Based on
these complaints, Johnson first asked Judge
Volland for a continuance of the sentencing
hearing so he could hire a new attorney.
Then, when Judge Volland denied this request,
Johnson mentioned the possibility of self-
representation: I would like to request if I
could, you know, represent myself in this
matter, as I could fill in, you know, myself.
In response, Judge Volland
explained that Johnson had the right to speak
directly to the court at sentencing to
address any errors in the pre-sentence
report, and to express his views on what
would be an appropriate sentence. This
explanation apparently satisfied Johnsons
concerns: he responded, Okay, and he did not
renew his request to represent himself.
In other words, Judge Volland could
reasonably conclude that Johnsons real desire
was not to exercise his right of self-
representation, but rather to have the
opportunity to personally object to the
content of the pre-sentence report and to the
States sentencing recommendations. Given
this record, Judge Volland was under no duty
to conduct a further, formal explanation of
Johnsons right of self-representation (and
its attendant risks).
Conclusion
The judgement of the superior court is
AFFIRMED.
_______________________________
1 AS 28.35.030(n).
2 Dorman v. State, 622 P.2d 448, 453 (Alaska 1981) (citing
Martin v. City of Fairbanks, 456 P.2d 462, 464 (Alaska 1969)).
3 Helmer v. State, 608 P.2d 38, 39 (Alaska 1980).
4See, e.g., Gladden v. State, 110 P.3d 1006, 1009 (Alaska
App. 2005); McIntire v. State, 42 P.3d 558, 560-61
(Alaska App. 2002); Evans v. State, 822 P.2d 1370, 1374
(Alaska App. 1991); Burks v. State, 748 P.2d 1178, 1182
n.1 (Alaska App. 1988) (Coats, J., dissenting); James
v. State, 730 P.2d 811, 814 n.1 (Alaska App. 1987).
5Fields, 49 F.3d at 1033.
6Id.
7Id. at 1033-34.
8Cross, 893 F.2d at 1291.
9Carter, 513 A.2d at 50.
10 Id.
11 Id. at 51.
12 Id.
13 Tena, 67 Cal.Rptr.3d at 419-420.
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