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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| DAVID G. GLADDEN, | ) Court of Appeals No. A- 9429 | |
| ) Trial Court No. 3DI- 03- 0057 CR | ) | |
| ) | ||
| v. | ) | |
| ) O P I N I O N | ||
| STATE OF ALASKA, | ) | |
| ) | ||
| Appellee. | ) No. 2092 - March 23, 2007 | |
| ) | ||
Appeal from the
District Court, Third Judicial District,
Dillingham, Fred Torrisi, Judge.
Appearances: David G. Gladden, pro se,
Dillingham. Tamara E. de Lucia, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
David W. M rquez, Attorney General, Juneau,
for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
A jury convicted David G. Gladden of driving with a
suspended license.1 He appeared pro se at trial. Gladden
appealed his conviction, and we reversed because the record in
his case did not show that he had knowingly and intelligently
waived his right to counsel. On remand, the district court
remedied that error. The court informed Gladden of the benefits
of an attorney and of the hazards of self-representation.
Gladden continued to insist that he wanted an attorney, but he
refused to take the steps necessary to get one. The district
court therefore found that Gladden, by this conduct, had
impliedly elected to proceed pro se. The court also found that
he had done so knowingly and intelligently. Gladden was again
convicted. In this second appeal, he renews his claim that he
was denied his right to counsel, and raises various other claims.
We affirm his conviction.
Gladden knowingly and intelligently waived his right
to counsel
Gladden renews his claim that his conviction is
invalid because he was denied his Sixth Amendment right to
counsel at arraignment, trial call, trial, and sentencing. He
argues that the district court was without jurisdiction to try
him because he made no on-record waiver of the right to counsel.
In Gladden I, we held that Gladden had impliedly
waived his right to counsel by refusing to hire an attorney
despite District Court Judge Fred Torrisis repeated warnings that
trial would go forward whether he had an attorney or not.2 As we
explained in Gladden I, Gladden refused to accept an attorney who
would not sign his contract, even though Judge Torrisi warned him
that this method of securing counsel [was] extremely unlikely to
result in his actually obtaining a lawyer, especially since the
contract contains terms relating to the type of court, official
bonds and seals, a true Civil Commission and other provisions
which might seem foreign and irrelevant to the usual criminal
lawyer.3
On remand, Gladden continued to maintain that he had
tried to hire an attorney but could not find one willing to sign
his contract. Judge Torrisi therefore found that Gladden had
impliedly waived his right to counsel by refusing to take
reasonable action to secure an attorney. That finding is
supported by the record. By insisting on an attorney who would
sign his contract, while conceding he knew that no attorney would
sign such a contract, Gladden waived his right to counsel.4
The record on remand also shows that Gladdens waiver
was knowing and intelligent. In Gladden I, we explained the type
of inquiry required once a defendant declares his intention to
proceed pro se:
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 defendants 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.[5]
On remand, Judge Torrisi explained the importance of
counsel and the disadvantages of self-representation in some
detail. He warned Gladden that, while he had the right to
represent himself, the decision to forego counsel is almost
always a bad one. He told Gladden that an attorney could, among
other things: conduct jury voir dire and move to disqualify
jurors; determine what motions to file; draft and object to jury
instructions; contact, interview, and subpoena witnesses; request
discovery; present expert witnesses; impeach trial witnesses; and
move the court to take various actions, such as granting a
judgment of acquittal. At the prosecutors prompting, Gladden was
also told that an attorney could try to negotiate a reduced
sentence with the State and, if Gladden was convicted, represent
him at sentencing.
Judge Torrisi further explained that the rules of
evidence were complicated, and that it was almost impossible for
a lay person to be familiar with all of them. He told Gladden
that, without an attorney who knew when to object, the jury might
hear inadmissible evidence that could affect the verdict. He
warned Gladden that if he neglected to object to evidence at
trial, he would not preserve his objection to that evidence for
appeal. He told Gladden that there were pitfalls in appearing
before the jury as both an advocate and a defendant, and that the
jury might find his case less persuasive if he assumed both
roles. He also warned Gladden that, if he represented himself,
he could not appeal his conviction on the ground of ineffective
assistance of counsel. Finally, he warned Gladden that if he
decided to proceed pro se, he would not have the option to change
his mind and demand an attorney mid-trial.
Under oath, Gladden said he understood what Judge
Torrisi had explained to him. He also said that he understood
how difficult it would be to try his case without an attorney.
He acknowledged that he had read the United States Supreme Courts
decision in Johnson v. Zerbst,6 which declared the obvious truth
that the average defendant does not have the professional legal
skill to protect himself when brought before a tribunal with
power to take his life or liberty, wherein the prosecution is
presented by experienced and learned counsel.7 He said he was
not ill and was not under the influence of alcohol or drugs.
Judge Torrisi tried to establish Gladdens level of
education, and to confirm that he worked as a pilot, to
demonstrate for the record that Gladden was competent to
represent himself. But Gladden refused to answer these questions
without the assistance of counsel. Gladden continued the
position he took in his first trial: he said he would not waive
his right to counsel, that he was not qualified or prepared to
proceed without an attorney, but that he could not find one who
was willing to sign his contract.8
At the close of Gladdens representation hearing, Judge
Torrisi found that Gladden was intelligent, that he knew what he
was doing, and that he had effectively waived his right to
counsel by refusing to accept any attorney who would not sign a
contract that he knew no attorney would sign.
This conclusion is supported by the record. There was
nothing particularly complex about Gladdens case; the States
evidence consisted of the testimony of the arresting officer and
a certified copy of Gladdens driving record.9 Gladden had
already represented himself through one trial. Judge Torrisi
explained the hazards of self-representation and the benefits of
an attorney in considerable detail. Gladden said he understood
the judges explanation. He also said he understood how
difficult it would be to try his case without a lawyer. Although
Gladden refused to answer questions about his education or what
he did for a living, Judge Torrisi had already been through a
trial with Gladden; he therefore had grounds to find that Gladden
was intelligent and could follow the rules of court and conduct
his defense without being disruptive or disorderly. Given this
record, we conclude that Gladden knowingly and intelligently
waived his right to an attorney at trial and that Judge Torrisi
did not err in requiring him to proceed pro se.
Gladden also argues that he was denied his right to
counsel in his arraignment before Judge Torrisi on August 15,
2005. But Gladden was not arraigned on August 15, 2005; he was
arraigned on February 19, 2003, before Magistrate Monte Brice.
To the extent that Gladden intended to argue that he was denied
his right to counsel during his arraignment before Magistrate
Brice, his claim is inadequately briefed.10 We therefore do not
address it.
Gladden argues that he was denied his right to counsel
at sentencing because Judge Torrisi did not obtain a separate
waiver of counsel in that proceeding. Because Gladden did not
raise this claim below, he must show plain error.11
Alaska courts have not addressed whether a valid
waiver of counsel at trial remains in effect at subsequent
proceedings, or whether the court must obtain a separate waiver
at each proceeding. But the weight of authority in other
jurisdictions is that a valid waiver remains in effect unless the
defendant explicitly revokes it or there is a change of
circumstance that gives the court reason to renew its inquiry.12
At sentencing, Gladden did not request counsel; nor
has he pointed to any circumstance suggesting that the court
should have conducted a new inquiry sua sponte. Because there is
significant authority to support the courts conclusion that no
renewed inquiry was necessary under these circumstances, Gladden
has not shown plain error.13
Gladdens claim that he was denied counsel at his two
trial calls fails for the same reason. Gladdens representation
hearing was held in June 2005; his trial calls were held several
months later, in August 2005, after Judge Torrisi had obtained a
valid waiver of Gladdens right to counsel. Although Gladden
continued to assert, as he had throughout his litigation, that he
was being denied his right to counsel, he said nothing to suggest
that he had changed his position and was willing to take
realistic steps to hire an attorney or to demonstrate his
eligibility for court-appointed counsel, or that his
circumstances had changed in some other way. Gladden has
therefore not shown plain error.
Gladdens other claims
Gladden appears to argue that the supreme court
violated the constitution by enacting Criminal Rule 5 and
Criminal Rule 5.1, which provide, respectively, that a defendant
must be advised of the right to counsel at arraignment and has
the right to counsel at a preliminary examination. Gladden
apparently is of the view that the supreme court, by enacting
these rules, provided that these rights could be abrogated by
supreme court order or by legislation. This argument fails. The
supreme court enacted these rules to implement the constitutional
right to counsel, not to supersede it.14
Gladden also argues that he was denied a fair trial
because the judge and prosecutor had an interest in the outcome
of his case. To support this claim, he notes that his criminal
complaint identifies him by his social security number conduct
he claims would place Gladden outside of any Constitution and
without any constitutionally secured rights having accepted a
benefit, i.e. gratuity as held in In re Murchison, 349 U.S. 133,
136 [, 75 S. Ct. 623, 625, 99 L. Ed 942] (1955). (Gladden
apparently cites In re Murchison for the principle that no man is
permitted to try cases where he has an interest in the
outcome.15) He also argues that the judge and prosecutor had an
interest in his drivers license because the court system has
entered into a cooperative agreement with the Child Support
Enforcement Division. But Gladden does not articulate why
including his social security number on the complaint, or the
court systems cooperative agreement with the CSED, gave the judge
and prosecutor an interest in the outcome of his case. His claim
is thus inadequately briefed.16
Gladden also argues that his right to discovery under
Criminal Rule 16 was violated because the State did not give him
documents demonstrating that the judicial officers and
prosecutors involved in his case were public officers of the
State of Alaska. During trial, Gladden asked for a stay of
proceedings so he could file an interlocutory appeal in this
court concerning Rule of Professional Conduct 1.2, Criminal Rule
16(a), and his right to have an independent judge. Gladden
complained that the State had denied him inculpatory and
exculpatory evidence having to do with lawyers and the bar
association. Gladden did not elaborate on the precise documents
he was seeking. Judge Torrisi denied the stay after establishing
that Gladden was seeking bar rules, rules of professional conduct
and legal opinions and not police reports, criminal records, or
other documents that the State must disclose under Rule 16.
There was no discovery violation. Gladden did not ask
the trial court to compel any specific documents, nor did he
explain how documents relating to lawyers and the bar association
were material to his defense. In the absence of such a showing
of materiality, the type of documents he was seeking, to the
extent that they exist, are not of the type that the State was
required to disclose under Rule 16.17
Gladden also argues that there are no attorneys
properly licensed in Alaska because the Board of Governors of the
Alaska Bar Association and the Alaska Supreme Court have no
authority to certify and admit attorneys to practice law in this
state. In Crane v. State,18 we gave careful consideration to
that claim, and rejected it.19
Lastly, Gladden claims that the district court had no
authority to decide his case. We considered and rejected this
same argument in Gladden I.20
Conclusion
Gladdens conviction is AFFIRMED.
_______________________________
1 AS 28.15.291(a)(1); Gladden v. State, 110 P.3d 1006
(Alaska App. 2005).
2 Gladden, 110 P.3d at 1010; see also Crane v. State, 118
P.3d 1084, 1093 (Alaska App. 2005) (noting that deliberately
refraining from hiring an attorney may be treated as a waiver of
the right to counsel).
3 Gladden, 110 P.3d at 1009.
4 Gottschalk v. State, 602 P.2d 448, 451 (Alaska 1979) (It
has been well established that a non-indigent defendant who fails
to retain an attorney within a reasonable time before trial may
be found to have waived his right to counsel.) (citing Ungar v.
Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849, 11 L. Ed. 2d
921, 931 (1964); United States v. Rubinson, 543 F.2d 951, 963-64
(2d Cir. 1976); United States v. Casey, 480 F.2d 151, 152 (5th
Cir. 1973); United States v. McMann, 386 F.2d 611, 618 (2d Cir.
1967); Relerford v. United States, 309 F.2d 706, 708 (9th Cir.
1962)); see also United States v. Llanes, 374 F.2d 712, 717 (2d
Cir. 1967) (quoting United States v. Bentvena, 319 F.2d 916, 936
(2d Cir. 1963) (We and other courts of appeals have repeatedly
made clear that the right to counsel cannot be ... manipulated so
as to obstruct the orderly procedure in the courts or to
interfere with the fair administration of justice.)).
5 Gladden, 110 P.3d at 1009 (quoting James v. State, 730
P.2d 811, 814 n.1 (Alaska App. 1987) (quoting the Commentary to 1
ABA Standards for Criminal Justice 63.6, at 6.3940 (2d ed.
1982)).
6 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).
7 304 U.S. at 462-63, 58 S. Ct. at 1022.
8 Gladden, 110 P.3d at 1008.
9 Id. at 1007.
10 Katmailand, Inc. v. Lake and Peninsula Borough, 904
P.2d 397, 402 n.7 (Alaska 1995); Petersen v. Mutual Life Ins. Co.
of New York, 803 P.2d 406, 410 (Alaska 1990).
11 Winkler v. State, 580 P.2d 1167, 1173 (Alaska 1978)
(citing Alaska R. Crim. P. 47(b)).
12 See, e.g., United States v. McBride, 362 F.3d 360, 367
(6th Cir. 2004); United States v. Springer, 51 F.3d 861, 864-65
(9th Cir. 1995); United States v. Unger, 915 F.2d 759, 762 (1st
Cir. 1990); United States v. Fazzini, 871 F.2d 635, 642-43 (7th
Cir. 1989); Panagos v. United States, 324 F.2d 764, 765-66 (10th
Cir. 1963); Davis v. United States, 226 F.2d 834, 840 (8th Cir.
1955); State v. Steed, 506 P.2d 1031, 1033 (Ariz. 1973); People
v. Baker, 440 N.E.2d 856, 860-61 (Ill. 1982); State v. Carpenter,
390 So. 2d 1296, 1299 (La. 1980); State v. Tiff, 260 N.W.2d 296,
303 (Neb. 1977); State v. Mathis, 159 N.W.2d 729, 732 (Wis.
1968).
13 Marrone v. State, 653 P.2d 672, 676 (Alaska App. 1982)
(holding that error is not plain if reasonable judges could
disagree as to whether error occurred).
14 See McCracken v. State, 518 P.2d 85, 88 (Alaska 1974)
(Both the Sixth Amendment to the United States Constitution and
art. I, sec. 11 of the Alaska Constitution guarantee a criminal
defendant the right to counsel.).
15 349 U.S. at 136, 75 S. Ct. at 625.
16 Katmailand, 904 P.2d at 402 n.7; Petersen, 803 P.2d at
410.
17 See Alaska R. Crim. P. 16(b).
18 118 P.3d 1084.
19 Id. at 1086-93.
20 110 P.3d at 1012.
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