James v. State

OPINION

Before BRYNER, C.J., and COATS and SINGLETON, JJ. COATS, Judge.

Joseph James was convicted, following a jury trial, of attempted sexual assault in the second degree, AS 11.31.100 and AS 11.41.420(a)(1), and three counts of sexual abuse of a minor in the first degree, AS 11.41.434(a)(1). James was sentenced to a composite sentence of thirty years. James appeals his conviction and sentence, raising several issues. We reverse James’ conviction, finding that the record does not indicate that James knowingly and intelligently waived his right to counsel.

A description of both the pre-trial proceedings and James’ actions at trial is necessary to an understanding of the waiver of counsel issue presented here. Following his arraignment, Pre-Trial Services contacted James to determine whether he qualified for a public defender. James apparently stated he would not allow a public defender to represent him. Pre-Trial Services contacted James again after learning James had failed to obtain private counsel, but James stated attorneys were a “handicap” and that he would represent himself.

Superior Court Judge Jay Hodges held a hearing on appointment of counsel on September 6, 1984. Judge Hodges told James several times at that hearing that the court would appoint James an attorney if he could not afford one, but James stated he had sufficient funds to hire his own attorney. The court also informed James his trial would begin October 22, and that he would have to have a lawyer at that time or represent himself.

At a second hearing, held on October 1, 1984, James acknowledged that he understood he would have to represent himself if he did not obtain an attorney. He affirmed, however, that he did not want a public defender appointed. The court warned James at this time that he would have to comply with the court rules even if he did not have a lawyer. James then asked the court how he could obtain witnesses’ names and how to subpoena witnesses. In response, Judge Hodges appointed the public defender’s office to act as James’ “secretary” to handle such matters for him. The judge also reminded James that he could return to court and get appointed counsel if he desired. James responded that he felt he already had enough “handicaps.”

*813In response to a letter from James requesting a continuance, Judge Hodges held another hearing on October 16, 1984. James contended he needed more time to prepare for trial because of crowded library conditions and because he was unfamiliar with the law. He stated that he felt he could adequately defend himself given enough time, although he would be “clumsy.” When Judge Hodges reminded James he had repeatedly been offered a public defender, and warned James that the trial would proceed as scheduled, James explained that he did not want a public defender. James stated that because he could not afford out-of-state counsel or find satisfactory in-state counsel, he had decided to represent himself. James told the court:

I wasn’t aware during the first couple of months that I would be representing myself, since I don’t consider that, you know, the best thing if you can avoid it. And when I finally ... figured out that I wouldn’t be able to obtain counsel to my satisfaction, then I realized that I had to do some study, and do some preparation.

Judge Hodges denied the continuance.

The trial began on October 23 with James representing himself. He reserved making his opening statement until after the state closed its case. James did not cross-examine three primary prosecution witnesses, including the two children he was accused of abusing. On the second day of trial, James asked for an attorney. After meeting with a public defender, James Cannon, James stated he wanted the public defender to take over full representation because “I don’t know what I’m doing— It became glaringly obvious.” Cannon requested and received a continuance until the following Monday.

All prosecution witnesses remained available. Cannon reviewed cassettes of the proceedings. When the trial convened, Cannon made an opening statement and called witnesses on James’ behalf. Cannon called the victims’ father and re-called the victims’ mother, as James had not cross-examined her when she testified previously. Finally, James also testified.

James now appeals his conviction, arguing that the trial judge should have made efforts to ensure James knew the risks and burdens involved in self-representation. James contends his constitutional right to an attorney was violated because Judge Hodges did not establish that James was making a knowing and intelligent waiver of that right before allowing James to represent himself.

Under Art. 1, sec. 21 of the Alaska Constitution and the Sixth Amendment to the United States Constitution, a criminal defendant has the right to represent himself. Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2535, 45 L.Ed.2d 562 (1975); McCracken v. State, 518 P.2d 85, 91 (Alaska 1974). However, courts have imposed protective restrictions on the exercise of that right because it involves a waiver of the fundamental right to counsel. A defendant must knowingly and intelligently give up the benefits of the right to counsel before being allowed to represent himself. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation_” Id.

The Alaska Supreme Court requires that the trial court first establish that the defendant can represent himself in a “rational and coherent manner” and then determine whether “the prisoner understands precisely what he is giving up by declining the assistance of counsel,” before allowing the defendant to appear pro se. McCracken, 518 P.2d at 91. The trial judge must explain the advantages of legal representation in “some detail.” Id. at 92. The record must reflect a clear waiver of the right to counsel. O’Dell v. Anchorage, 576 P.2d 104, 108 (Alaska 1978); Smith v. State, 651 P.2d 1191, 1194 (Alaska App. 1982).

In addition, Alaska Rule of Criminal Procedure 39(b)(3) requires the court to ap*814point an attorney for an indigent defendant unless the defendant both proves that he understands the benefits of having an attorney and knowingly waives that right. This rule places an affirmative duty on the trial judge to determine, on the record, whether a defendant understands the benefits of legal counsel. Gregory v. State, 550 P.2d 874, 379 (Alaska 1976).1

None of the required inquiries appear on the record in this case. There is no indication in the record that the trial judge ever informed James what an attorney could do, explained the problems of defending oneself, or asked James if he understood either an attorney’s function or the difficulties of self-representation. While at one point James did say he thought representing himself was not a good thing to do, this hardly demonstrates that he fully understood the risks he was undertaking. Nor was it sufficient for the trial judge to repeatedly tell James he had the right to appointed counsel.

The record does not demonstrate James understood either a lawyer's function or what it would mean to proceed without counsel. Given the severity of the charges here, James’ obvious confusion about obtaining counsel, and his apparent difficulties in representing himself, both before and during trial, we believe it was incumbent on the trial judge to guarantee James understood the consequences of his actions. This required a careful explanation of what an attorney could do for James as well as an explicit inquiry on the record into whether James understood that explanation, and the risks he was undertaking. This inquiry would not have disrupted the proceedings, as Judge Hodges knew a week before trial began that James intended to represent himself. Although we could speculate about the sophistication of James’ legal knowledge, the purpose of requiring specific inquiries on the record is to avoid the need for such speculation. Absent this evidence, we must find that James did not validly waive his right to counsel.

We find that this case is distinguishable from Kelly v. State, 663 P.2d 967 (Alaska App.1983). In Kelly we found that Kelly had knowingly and intelligently waived his right to counsel in spite of the fact that the trial judge had not made the thorough inquiry mandated by McCracken. In Kelly, similarly to this case, the trial judge had merely cautioned Kelly that he would be held to the same standard of conduct and that the same rules would apply as if Kelly were an attorney. In finding that Kelly waived his right to counsel, we emphasized that the record demonstrated Kelly’s “considerable experience with the criminal justice system” and that the record indicated “a strong likelihood that Kelly was aware of the advantages inhering to a criminal defendant from representation by counsel.” Id. at 969. We emphasized that the record showed Kelly’s legal sophistication. Id. Of particular importance in Kelly’s case was the fact that throughout the trial he had an attorney aiding him as co-counsel. Id. at 970. We also note that the charges against Kelly were uncomplicated (issuing a bad check). Id. at 968.

By contrast, although James has had pri- or contact with the criminal justice system, the record does not indicate that he had the legal sophistication which Kelly had. The sexual assault charges, which involved *815cross-examining young victims who were alleging sexual assault, were particularly sensitive charges for James to defend himself against. Of primary importance is the fact that James did not have representation for other than issuing subpoenas until the second day of trial. By the time counsel entered the case, significant evidence had been presented to the jury. We cannot help but believe that it was a significant handicap for counsel to enter this case in mid-trial.

The record in this case is not sufficient for us to find that James knowingly and intelligently waived his right to counsel. We therefore reverse his conviction.

REVERSED.2

BRYNER, C.J., concurs.

SINGLETON, J., dissents.

. The Commentary to 1 ABA Standards for Criminal Justice, § 6-3.6 at 6.39-40 (2d. ed. 1982) states:

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. [Footnotes omitted.]

. Because James’ conviction is reversed, we find it unnecessary to review his sentence.