Crawford v. State , 2014 Alas. App. LEXIS 151 ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KEANE-ALEXANDER CRAWFORD,
Court of Appeals No. A-10855
Appellant, Trial Court No. 3AN-08-13715 CR
v.
O P I N I O N
STATE OF ALASKA,
Appellee. No. 2432 — October 31, 2014
Appeal from the Superior Court, Third Judicial District,
Anchorage, Eric A. Aarseth, Patrick McKay, Jack W. Smith,
and Michael Spaan, Judges.
Appearances: Keane-Alexander Crawford, in propria persona,
Seward, for the Appellant. Diane L. Wendlandt, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Michael C. Geraghty, Attorney General, Juneau,
for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and E. Smith,
Superior Court Judge * .
Judge MANNHEIMER.
*
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
Keane-Alexander Crawford was convicted of second-degree murder for
shooting and killing his sister’s fiancé, following a physical altercation between the two
men. Crawford represented himself at trial, and he continues to represent himself in this
appeal.
On appeal, Crawford contends that he was brought to trial outside the time
limits of Alaska Criminal Rule 45 (Alaska’s speedy trial rule), and in violation of the
Sixth Amendment right to speedy trial, and that his conviction should therefore be
reversed with prejudice. In the alternative, Crawford argues that he is entitled to a new
trial on several bases.
Crawford contends that he is entitled to a new trial because his trial judge
should have recused himself.
In addition, Crawford asserts that his trial was flawed because the trial
judge improperly restricted his voir dire examination of prospective jurors, refused to
enforce Crawford’s subpoena for a prospective defense witness, made several erroneous
evidentiary rulings, misinstructed the jurors on self-defense, and refused Crawford’s
request to instruct the jury on “defense of others”.
Crawford also argues that the trial judge improperly denied his post-verdict
motion for a new trial.
Finally, Crawford claims that he was unlawfully denied a fair opportunity
to defend himself because he was indigent and the trial judge declined to provide
Crawford with funds to hire an expert witness.
With respect to all but one of Crawford’s claims of error, we conclude
either that there was no error, or that the error Crawford has identified was harmless.
But with respect to Crawford’s claim that he was entitled to public funds
to hire an expert witness, even after he declined to be represented by a court-appointed
attorney, we conclude that we should seek supplemental briefing on this claim. This
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question is one of first impression in this state, it turns on issues of statutory construction
and constitutional law, and Crawford is representing himself in this appeal. Even though
Crawford has written a detailed and articulate brief, he is not trained in the law, and this
Court believes that it would be fairer to Crawford — and to the future pro se litigants
affected by our decision — to have attorneys brief both sides of this controversy. We
therefore will solicit supplemental briefs from the parties and from the state’s two
criminal defense agencies, the Public Defender Agency and the Office of Public
Advocacy.
The procedural facts relating to Crawford’s speedy trial claim, and an
overview of our analysis of this claim
Criminal Rule 45(c)(1) provides that a criminal defendant must be brought
to trial within 120 days from the date they were served with the charging document, but
Criminal Rule 45(d) exempts various types of delay from this 120-day calculation.
Crawford was arraigned and served with the charging documents on
December 7, 2008, so the following day (December 8) was Day 1 of his Rule 45
calculation.
The Rule 45 clock ran for 30 days, until January 6, 2009, when Crawford
filed motions for a change of venue and for special consideration due to his indigency
and pro se status. The filing of those motions tolled the running of the speedy trial clock.
See Criminal Rule 45(d)(1).
Crawford withdrew his motions on January 13th, but by that time there was
an independent reason to toll the running of the speedy trial clock under Rule 45(d)(1):
on January 8th, the superior court ordered Crawford to undergo a psychiatric
examination to determine whether he was competent to represent himself.
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The report from that psychiatric examination was filed with the trial court
on January 29th, but the report was inconclusive because Crawford had refused to
participate in the examination. The court therefore ordered a second psychiatric
examination, and this issue remained undecided.
Moreover, Crawford filed several other motions on January 28th: motions
for depositions of witnesses, to compel pre-trial discovery, to dismiss the indictment, and
to sever the trials of the various charges against him — as well as renewed motions for
a change of venue and for special consideration due to his indigency and pro se status.
While these motions were pending, Crawford filed a motion asking the trial
court to order the Office of Public Advocacy to provide him with investigative assistance
and with funds for expert witnesses. Crawford also asked the court to appoint private
counsel for him. These motions became ripe for decision on February 25, 2009 (the day
that Crawford filed his reply to the State’s oppositions). This meant that the speedy trial
clock would begin to run again 30 days later — on March 27th — unless the trial court
ruled on the motions sooner. See Criminal Rule 45(d)(1).
The trial court ruled on the last of Crawford’s motions on March 24th.
However, the speedy trial clock remained tolled because the court had not yet ruled on
the issue of whether Crawford was competent to represent himself. The court had
received the report from the second psychiatric examination on March 11th — but, again,
Crawford had declined to participate. So on March 25th, the court ordered a third
psychiatric examination, and the speedy trial clock remained tolled.
The court received the report from the third psychiatric examination on
April 16th. Based on that report, the court granted Crawford’s request to represent
himself on April 22nd.
With all pending motions resolved, the speedy trial clock began running the
following day: April 23rd. This was Day 31 of the calculation.
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Various pre-trial conferences and proceedings took place during the next
several weeks, with the speedy trial clock running. The court set a final pre-trial
conference for June 10th, and the court scheduled Crawford’s trial for Monday, June 22,
2009.
June 22nd was 60 days after April 23rd (and April 23rd was Day 31).
Thus, if Crawford’s trial had begun on June 22nd, that would have been Day 91 for
speedy trial purposes.
But on June 16, 2009, Crawford requested a five-day continuance of his
trial. (Actually, Crawford’s request amounted to a request for a seven-day continuance,
because the scheduled trial date — June 22nd — was a Monday; the five days that
Crawford was asking for would have ended on a Saturday.)
The court granted Crawford’s request and rescheduled the trial for Monday,
June 29th. This continuance stopped the running of the speedy trial clock at Day 85.
Then, on June 29th, Crawford asked the court for another continuance —
or, in the alternative, dismissal of the charges against him — because he had not received
all the pre-trial discovery he was entitled to. Thus, the speedy trial clock remained tolled
at Day 85.
Three days later, on July 2nd, the trial court issued its ruling on the
discovery question. The court found that the State had violated various pre-trial
discovery orders, but the court found that the State’s violations had not been willful. The
court therefore denied Crawford’s request to dismiss the charges, but the court granted
Crawford’s alternative request for a continuance of the trial. Specifically, the court
ordered a month’s continuance of the trial — until August 3, 2009.
On August 3rd (i.e., the scheduled trial date), Crawford asked the court to
grant him another continuance to prepare and file motions and to obtain expert witnesses.
–5– 2432
Crawford agreed to delay his trial for three months — until November 2nd — for these
purposes. The court granted Crawford’s request.
However, on September 18th, Crawford informed the court that he was
withdrawing his request for the remainder of this three-month continuance, and that he
wished to go to trial as soon as possible. The court nevertheless maintained the
November 2nd trial date.
On November 2nd, Crawford asked the court for public funds to transport
various defense witnesses, including three young children. Crawford’s motion led to
hearings on the competency of the child witnesses. Crawford also filed a motion asking
the court to issue compulsory process so that Crawford could have access to a child
witness, T.B., the homicide victim’s son.
Because of Crawford’s motions, and the resulting proceedings on those
motions, the speedy trial clock remained tolled at Day 85.
On November 9th, the trial court concluded that Crawford was not
competent to represent himself, and the court appointed the Public Defender Agency to
represent him.
Because the court had not yet ruled on one aspect of Crawford’s
November 2nd motions (specifically, the competency of the child witnesses), the speedy
trial clock was still tolled. But, in addition, the court expressly tolled the speedy trial
clock for another 30 days — over Crawford’s objection — to allow the Public Defender
Agency to determine if there was a conflict that would prevent the Agency from
representing Crawford, and (if not) to allow time for an assistant public defender to
prepare for Crawford’s trial.
That same day (November 9th), Crawford petitioned this Court to review
the trial court’s ruling regarding Crawford’s competency to represent himself. This
petition for review independently tolled the running of the speedy trial clock — because,
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until the issue of Crawford’s competence to represent himself was resolved, the trial
could not go forward.
On December 15, 2009, this Court granted Crawford’s petition for review
and overruled the trial court on the issue of Crawford’s competence to represent himself.
Crawford’s case was returned to the superior court for trial, with the speedy trial clock
still standing at Day 85.
Under Sundberg v. State, 667 P.2d 1268, 1270-71 (Alaska App. 1983),
when a case is returned to the trial court following this Court’s resolution of a petition
for review, the trial court has a 30-day grace period to work the case back into its trial
schedule. Crawford’s case returned to the superior court on December 16, 2009 (the day
after we issued our ruling on Crawford’s petition for review), and Crawford’s trial began
22 days later — on January 6, 2010.
In sum: On the day that Crawford’s trial began, the speedy trial clock stood
at Day 85. Crawford was therefore brought to trial within the time limits of Criminal
Rule 45.
Crawford’s objections to the foregoing speedy trial analysis
(a) The time attributable to Crawford’s request for a five-day
continuance of trial on June 16, 2009
Crawford’s first objection to the foregoing analysis involves our conclusion
that Crawford effectively waived seven days of time when, on June 16, 2009, he asked
the trial court for a five-day continuance of his trial. Crawford argues that because he
only asked for a five-day delay, it was improper to toll the running of Rule 45 for any
greater length of time.
–7– 2432
But as we explained earlier, Crawford’s request for a five-day delay
effectively amounted to a request for a seven-day delay. His trial was scheduled for
Monday, June 22nd. The five days he asked for would have ended on Saturday the 27th,
so the trial could not have started until Monday the 29th.
We further note that when Crawford requested the five-day continuance at
the June 16th pre-trial conference, the trial court expressly told him that Rule 45 would
be tolled for “one week”. Crawford did not object to the trial court’s characterization of
the situation.
It is true that Crawford returned to court the next day and announced
(1) that he was withdrawing his request for the five-day continuance, and (2) that he now
wanted to go to trial as previously scheduled, on June 22nd. But the trial court explained
that, because of Crawford’s earlier request, the trial of another case had already been set
for June 22nd, and Crawford’s own trial had been rescheduled for June 29th. Thus, the
court told Crawford, he had effectively “waived a week” of time under Rule 45.
We agree that, under these facts, the trial court was justified in holding
Crawford to the rescheduled trial date. This conclusion rests on two principles.
The first principle — illustrated by our supreme court’s decision in Coffey
v. State, 585 P.2d 514 (Alaska 1978), and by our own decision in State v. Jeske, 823 P.2d
6 (Alaska App. 1991) — is that when a defendant rescinds a previous waiver of time
under Rule 45 or a previous agreement to a continuance, the rescission does not take
effect ab initio. Rather, the Rule 45 clock remains tolled until the defendant’s change
of mind is affirmatively communicated to the trial court. 1
The second principle is that the speedy trial clock does not necessarily
begin running again immediately upon a defendant’s announcement that they wish to
1
Coffey, 585 P.2d at 520-21; Jeske, 823 P.2d at 9-10.
–8– 2432
withdraw their earlier waiver or consent to a continuance. Rather, as we suggested in
Wardlow v. State, 2 P.3d 1238 (Alaska App. 2000), if the trial court’s schedule has been
altered in reliance on the defendant’s earlier waiver of time, the trial court would be
“justified in adding several days to the Rule 45 calculation in order to work [the
defendant’s] case back into the trial calendar — or in telling [the defendant] that he
would have to wait until the scheduled trial date”. Id. at 1244.
We note that Criminal Rule 45(d)(2) speaks of the “period of delay
resulting from ... [a] continuance granted at the timely request or with the consent of the
defendant.” When a defendant requests a continuance, and then later rescinds that
request, the court may not be able to put the defendant’s case back into the trial calendar
in its original spot, and thus the defendant’s request may result in a greater period of
delay.
Compare our holdings in Sundberg v. State, 657 P.2d 843 (Alaska App.
1982), as modified on rehearing, 667 P.2d 1268, 1270 (Alaska App. 1983), and Petersen
v. State, 838 P.2d 812, 815 (Alaska App. 1992).
In Crawford’s case, when Crawford announced that he wished to rescind
his earlier request for a continuance of his trial, the court explained that Crawford’s
June 22nd trial date had already been given to another case, and that Crawford would
have to wait until the Monday after that — June 29th. Given the record here, the trial
court’s action was permissible under Criminal Rule 45(d)(2).
–9– 2432
(b) The time attributable to Crawford’s request for a continuance of
trial on June 29, 2009
Crawford’s next objection to our speedy trial analysis involves the trial
court’s response when, on June 29th, Crawford asked for a continuance of his trial — or,
in the alternative, dismissal of the charges — because the State had failed to provide all
of the required pre-trial discovery.
When Crawford asked for this continuance, he also asked the court to
sanction the State for its discovery violations by charging the additional time against the
State for purposes of Rule 45. Crawford argued that it was unfair to make him choose
between his right to pre-trial discovery and his right to a speedy trial.
Following a series of hearings, the trial court ultimately agreed with
Crawford that the State had violated its discovery obligations; but the court found that
the State’s violations had not been willful. The court concluded that the proper remedy
for the discovery violations was a continuance of the trial until August 3, 2009 — but the
continuance would be charged against Crawford, not the State. (The court recognized
that if the delay was charged to the State, this would bring Crawford’s case to the brink
of dismissal under Rule 45(g).)
On appeal, Crawford claims that the trial court’s action violated Criminal
Rule 45(d)(2). Rule 45(d)(2) is the provision of the speedy trial rule that exempts
periods of delay resulting from “continuance[s] granted at the timely request [of,] or with
the consent of[,] the defendant”.
The final sentence of this rule declares: “A defendant without counsel shall
not be deemed to have consented to a continuance [for purposes of this rule] unless the
defendant has been advised by the court of the right to a speedy trial under this rule[,]
and of the effect of [the defendant’s] consent [to the continuance].”
– 10 – 2432
Crawford argues that, because he was representing himself, and because the
trial court neglected to expressly inform him that his requested continuance (if granted)
would toll the running of the speedy trial clock, any delay attributable to the requested
continuance had to run against the State.
We reject Crawford’s argument for two reasons.
First, the wording of Criminal Rule 45(d)(2), taken as a whole, actually
suggests that the trial court was not required to affirmatively warn Crawford about the
Rule 45 consequences of the continuance. The final sentence of Rule 45(d)(2) declares
that an unrepresented defendant “shall not be deemed to have consented to a
continuance” unless the court informs the defendant of the speedy trial consequences of
their consent. But the initial sentence of Rule 45(d)(2) speaks of two different situations:
situations where a continuance is granted “at the ... request” of the defendant, and
situations where a continuance is granted “with the consent” of the defendant.
Comparing the wording of these two sentences, it appears that the drafters
of Rule 45(d)(2) may have intended to draw a distinction between (1) situations where
a defendant actively seeks a continuance, versus (2) situations where a defendant
acquiesces in a continuance proposed by the government or by the court — and that the
drafters intended the final sentence of the rule (the proviso that requires the court to
specially advise unrepresented defendants) to apply only to the second type of situation.
In the present case, Crawford did not merely “consent” to the continuance.
Instead, he affirmatively requested the continuance. Thus, the final sentence of Rule
45(d)(2) would not apply.
Second, even if the final sentence of Rule 45(d)(2) did apply to Crawford’s
situation, it was satisfied.
When Crawford made his motion to continue the trial on June 29, 2009, the
trial court had already advised him several times of his right to a speedy trial under
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Rule 45. In particular, just a few days earlier, the court had advised Crawford that “the
filing of a motion automatically tolls speedy trial time, regardless of its nature,” and that
Rule 45 might conceivably be tolled “for as much as 30 days after the [motion] becomes
ripe [for decision].” At that time, Crawford assured the trial court that he was familiar
with Criminal Rule 45. Even though the trial court may not have repeated this warning
when Crawford moved for a continuance of the trial on June 29th, Crawford had been
warned that any motion he filed would stop the Rule 45 clock.
Crawford also argues that his request for a continuance of the trial was
conditioned on the court’s agreeing to charge the delay against the State. But when the
trial court ruled on Crawford’s motion, and continued the trial until August 3rd, the court
expressly told Crawford that this continuance would be charged against him — because
the State’s discovery violations were not willful, and because charging the time against
the State would risk dismissal of the charges under Rule 45(g).
It is true that, in response to the trial court’s ruling, Crawford filed a notice
on July 9, 2009, stating that he did not consent to the tolling of Rule 45. But even though
Crawford expressed his dissatisfaction with this portion of the trial court’s ruling,
Crawford did not actually rescind his request for a continuance of the trial, nor did he
otherwise assert that he wanted to go to trial immediately, even though he was
presumably unprepared because of the State’s discovery violations. Thus, the trial court
had no occasion to alter the newly scheduled trial date of August 3, 2009.
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(c) The trial court’s decision to characterize Crawford’s August 3rd
pleading as a motion for reconsideration rather than a motion to
dismiss on Rule 45 grounds
On August 3, 2009 (the day set for trial), Crawford filed a motion to dismiss
the charges against him. Crawford contended that the time for bringing him to trial
under Criminal Rule 45 had expired three and a half weeks earlier — because (according
to Crawford), when the court granted Crawford’s request for a continuance of trial on
July 2nd, that continuance should have been charged against the State, not against
Crawford.
The trial court treated Crawford’s motion as a motion for reconsideration
of the court’s earlier decision to charge the continuance against Crawford. In this appeal,
Crawford argues his motion was, indeed, a motion to dismiss, and thus the trial court
committed error when it recharacterized his motion.
This is a distinction without a true difference. No matter what Crawford’s
pleading was called, his underlying claim for relief was the same: the assertion that the
35-day delay of his trial from June 29th to August 3rd should have been charged to the
State — either because it was the State’s fault that the pre-trial discovery was incomplete,
or because the trial court failed to expressly advise Crawford of the provisions of Rule
45(d)(2).
As the Missouri Court of Appeals observed in State v. Moad, 294 S.W.3d
83, 86 (Mo. App. 2009), “the character of a pleading is determined by its subject matter
and not its designation.” Here, the substance of Crawford’s request for relief was his
assertion that the trial court committed error when, earlier, the court ruled that the
running of the speedy trial clock should be tolled from June 29th to August 3rd. No
matter what label we affix to Crawford’s pleading, this was the issue before the court.
– 13 – 2432
Crawford fails to explain why the name attached to his request has any
significance. And we have already explained why the trial court’s ruling was proper.
In his motion of August 3rd, Crawford argued for the first time that he had
a right to go to trial unprepared (because of the State’s discovery violations), and thus
it was improper for the court to delay Crawford’s trial so that the State could cure those
discovery violations, and so that Crawford would have time to analyze the newly
disclosed information.
But as we explained earlier, Crawford did not make this argument when the
trial court was first considering this matter, nor did Crawford make this argument even
after the trial court announced its ruling in early July (i.e., announced that Crawford’s
trial would be continued until August 3rd, but that Rule 45 would be tolled during this
time). Nor did Crawford apprise the trial court that he did, indeed, wish to go to trial
even though he knew that the State had not disclosed all of the information required by
the discovery rules.
Instead, Crawford waited until the arrival of the new trial date (August 3rd),
and then he filed a motion to dismiss in which he asserted that he would have preferred
to go to trial in early July, even though the State had not completed its pre-trial
discovery. This type of procedural maneuvering — accepting the benefit of a
continuance granted at one’s own request, and later arguing that the continuance was
unnecessary or improper — is not allowed. Compare Drake v. State, 899 P.2d 1385,
1388-89 (Alaska App. 1995); State v. Jeske, 823 P.2d 6, 10 (Alaska App. 1991).
– 14 – 2432
(d) Whether the trial court should have allowed Crawford to
withdraw his earlier consent to a delay of his trial from August 3rd to
November 2nd
On August 3rd (i.e., the scheduled trial date), Crawford asked the court to
grant him another continuance to prepare and file more motions, and to obtain expert
witnesses. Crawford initially requested a continuance of 45 days, but the trial court told
Crawford that a continuance of that length would create scheduling issues — and that if
Crawford wanted the continuance, he would have to agree to a trial in early November.
In response, Crawford told the court, “If ... the only kind of continuance I can get is three
months, then that’s what I’ll take.”
Ultimately, Crawford agreed to delay his trial until November 2nd, and the
court granted the requested continuance.
But on September 18th, after the court denied Crawford’s request for public
funding to hire expert witnesses, Crawford informed the court that he now wanted to
withdraw his consent to the remainder of the three-month continuance. Instead,
Crawford asked the court for an immediate trial. The court declined to alter the
November 2nd trial date.
On appeal, Crawford contends that the speedy trial clock should have
started running again as soon as he notified the court that he wished to withdraw his
consent to the remaining portion of the continuance. But Crawford had agreed to a
November 2nd trial date, and the court had already scheduled his trial for that date.
The trial court informed Crawford at the outset that Crawford’s request for
a continuance created scheduling problems — and that if Crawford wanted a continuance
of several weeks, the court would have to delay the trial for three months. Crawford
initially told the court that he was fine with this; then, about seven weeks later, he
changed his mind. But even though Crawford may have changed his mind about
– 15 – 2432
delaying his trial until early November, there is nothing in the record to indicate that the
court’s scheduling problems had changed — nothing to indicate that Crawford’s case
could reasonably be inserted into the court’s trial calendar before the scheduled date of
November 2nd.
As we have already explained, when a defendant consents to a delay of
trial, and then later withdraws their consent to the remainder of the delay, the court is not
required to push all other cases off the trial calendar to accommodate the defendant’s
change of mind. Rather, the court is entitled to a reasonable amount of time to work the
defendant’s case back into its trial schedule — and, in practice, this may mean that the
defendant must wait until the scheduled trial date.
On this record, Crawford has failed to show that the trial court abused its
discretion in requiring Crawford to abide by the already scheduled trial date of
November 2nd.
We also note that, even if the trial court abused its discretion when, on
September 18th, the court rejected Crawford’s request for an immediate trial, Crawford
filed a motion 11 days later — on September 29th — that would have tolled the running
of Rule 45 in any event. That motion was a request for public funds to cover the
transportation and lodging of his defense witnesses, which included his three young
children.
The court concluded that it could not resolve Crawford’s motion without
making a preliminary determination as to whether the three young children were
competent to testify. Hearings on the children’s competency took place between
November 2nd and November 9th. Thus, Crawford’s motion for public funding of his
witness expenses did not become ripe for decision until November 9th — one week after
the previously scheduled trial date of November 2nd.
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(e) The time attributable to the litigation of whether Crawford was
competent to represent himself
On November 9, 2009, the trial court concluded that Crawford was not
competent to represent himself, so the court delayed the proceedings for 30 days to allow
time for the Public Defender Agency (or the Office of Public Advocacy, if the Public
Defender had a conflict) to select an attorney to represent Crawford, and to give this
attorney time to prepare for trial. The trial court ruled that the speedy trial clock would
be tolled during this time.
On appeal, Crawford argues that the trial court should not have tolled the
running of Rule 45 during this 30-day period. But when a court concludes that a pro se
defendant is incompetent to represent themself, and that an attorney must be appointed,
we believe that a reasonable period of delay would be tolled under Rule 45 even if the
defendant objects.
But in Crawford’s case, this issue is moot — because, ten days after the trial
court ruled that Crawford was not competent to represent himself, Crawford petitioned
this Court to review the trial court’s ruling. See Crawford v. State, Court of Appeals File
No. A-10610. We granted Crawford’s petition and, in an order issued on December 15,
2009, we reversed the trial court’s ruling.
Under Criminal Rule 45(d)(1), the speedy trial clock is tolled for “period[s]
of delay resulting from ... interlocutory appeals”. Here, Crawford sought interlocutory
review of the trial court’s ruling that he was incompetent to proceed pro se, so the time
that this Court took to consider and resolve Crawford’s petition for review is attributable
to the litigation of the competency issue in the trial court. We conclude that the speedy
trial clock was tolled, not from the date that Crawford filed his petition (November 19,
2009), but rather from the date of the trial court’s underlying ruling: November 9, 2009.
– 17 – 2432
We previously addressed this same issue in an unpublished opinion: Green
v. State, 1993 WL 13157158 (Alaska App. 1993). In Green, we ruled that when a
defendant petitions us to review a trial court’s decision, Rule 45 is tolled from the date
of the challenged trial court decision (and not the later date when the defendant filed the
petition for review). Id. at *4. We explained that, if we construed Rule 45 the other way
(so that the speedy trial clock continued to run until the petition was filed), this would
“artificially truncate[] the time available to seek appellate review” and would encourage
“the hasty filing of ill-considered and ill-advised interlocutory appeals.” Id. at *4 n. 3.
We continue to find the reasoning of Green convincing. We therefore
conclude that, in Crawford’s case, the speedy trial clock was tolled from November 9,
2009 (when the trial court found that Crawford was incompetent to represent himself)
to December 15, 2009 (when this Court granted Crawford’s petition for review and
summarily reversed the trial court).
(Compare Vail v. State, 599 P.2d 1371, 1379-1380 (Alaska 1979), where
the supreme court held that Rule 45 was tolled from the initial filing of the petition for
review until the date the petition was decided. From the wording of the supreme court’s
decision, it appears that the court was not asked to decide the question of whether Rule
45 should also be tolled from the date of the disputed trial court decision. Rather, the
issue litigated in Vail was whether petitions for review should be treated like trial court
motions under Rule 45(d)(1), so that the speedy trial clock would automatically start
running again after the supreme court had the petition under advisement for 30 days.)
(f) Crawford’s demand for immediate trial on December 21, 2009
As explained in the preceding section, this Court decided Crawford’s
petition for review (and reversed the trial court’s ruling on Crawford’s competency to
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represent himself) on Tuesday, December 15, 2009. Crawford’s case returned to the trial
court on the following day, December 16th.
Five days later, on Monday, December 21st, the trial court held its first
hearing in Crawford’s case following this Court’s decision that Crawford should be
allowed to represent himself.
At that December 21st hearing, the trial court discharged the attorney who
had been appointed to represent Crawford (based on the trial court’s earlier finding of
incompetency), and then the court discussed when Crawford’s trial should begin.
Crawford initially told the court that he wanted the court to hold one more
pre-trial hearing, to make sure that all of his witnesses were properly subpoenaed in
advance of the new trial date that the court would set, and to give Crawford a chance to
secure standby counsel to help him at the trial. The trial court suggested that this pre­
trial conference could be held on Monday, January 4th, and then Crawford’s trial could
begin the next day, January 5th.
Crawford did not immediately object to this schedule, but he told the court
that he wanted the time to run against the State. A few minutes later, though, Crawford
told the court that he demanded an immediate trial — a trial that would start “today” or
“tomorrow”, even if this meant not getting his witnesses prepared, and going to trial
without standby counsel.
In response, the trial court informed Crawford that, given “the current
availability of judges”, the earliest that Crawford’s trial could start would be the week
of January 4th. The court then reiterated its intention to hold a final pre-trial conference
on Monday the 4th, and to begin jury selection on Tuesday, January 5th.
In Sundberg v. State, 667 P.2d 1268, 1270 (Alaska App. 1983), this Court
held that when a criminal case returns to the trial court following interlocutory review,
Rule 45 will be tolled for a reasonable amount of time to allow the court and the parties
– 19 – 2432
to work the case back into the court’s trial calendar. We also stated that an extra 30 days
would presumptively be reasonable. Ibid.; see also Keller v. State, 84 P.3d 1010, 1013
(Alaska App. 2004).
In Crawford’s case, the trial court acknowledged the rule in Sundberg, but
the court declared that it did not wish to delay Crawford’s trial by 30 days. Instead, the
court scheduled Crawford’s trial for two weeks in the future.
All of this was taking place during the winter holiday season, and the court
explicitly stated that its decision to set Crawford’s trial for the week of January 4th was
based on judge availability. This was a valid consideration under Sundberg, and we
therefore conclude that the period of time between December 16, 2009 and January 5,
2010 is excluded from the Rule 45 calculation.
Crawford’s trial did not begin on January 5th, but rather on January 6th.
The extra day was due to the fact that, at the January 4th pre-trial conference, Crawford
made an oral motion for the trial judge to recuse himself. The judge denied this motion
but, under the provisions of AS 22.20.020(c), the judge’s decision had to be reviewed
by another judge before the proceedings could go forward. This review delayed
Crawford’s trial by one day.
Because this delay was attributable to Crawford’s motion for recusal, this
extra day is likewise excluded from the Rule 45 calculation.
(g) Conclusion regarding Rule 45
For the reasons explained here, we conclude that only 85 days elapsed
under Criminal Rule 45 between the time that Crawford was served with the charging
documents (December 7, 2008) and the beginning of his trial (January 6, 2010). Thus,
Crawford was brought to trial within the time limits of Rule 45.
– 20 – 2432
Crawford’s speedy trial claim under the Sixth Amendment
In addition to his Rule 45 speedy trial claim, Crawford also argues that his
right to a speedy trial under the Sixth Amendment was violated.
As this Court acknowledged in Alvarez v. Ketchikan Gateway Borough,
91 P.3d 289, 294 (Alaska App. 2004), there may be rare instances where, even though
a defendant is brought to trial within the time limits of Rule 45, the delay in holding the
defendant’s trial still may have prejudiced the defendant to such an extent that the
defendant’s Sixth Amendment right to a speedy trial is violated. 2
In Alvarez, we pointed out that the Alaska Supreme Court has held that an
unexplained trial delay of 14 months or more is presumptively prejudicial, 3 while a delay
of eight months or less is presumed to be non-prejudicial. 4 But in applying these rules,
a court must exclude any periods of delay caused by the defendant. 5
Approximately 13 months elapsed between Crawford’s arraignment in early
December 2008 and the beginning of his trial in early January 2010. However, more
than half of this delay was attributable to Crawford’s various pre-trial motions and his
petition for review. When the delays attributable to Crawford are subtracted from the
total, only about six months of delay can be attributed to the State.
2
Citing Deacon v. State, 575 P.2d 1225, 1229 (Alaska 1978).
3
Alvarez, 91 P.3d at 294-95, citing Rutherford v. State, 486 P.2d 946, 951-52 (Alaska
1971), and Glasgow v. State, 469 P.2d 682, 688-89 (Alaska 1970).
4
Id. at 295, citing Nickerson v. State, 492 P.2d 118, 120 (Alaska 1971), and Tarnef v.
State, 492 P.2d 109, 112-13 (Alaska 1971).
5
Ibid., citing Rutherford, 486 P.2d at 952 n. 15, and Springer v. State, 666 P.2d 431,
435 (Alaska App. 1983).
– 21 – 2432
As we noted earlier, a delay of eight months or less is presumptively
non-prejudicial. Thus, to prevail on his Sixth Amendment claim, Crawford must show
that he was actually prejudiced by the six-month delay.
Crawford asserts that he suffered three kinds of prejudice. First, he argues
that the delay kept him incarcerated, and away from his family, for 13 months. But we
rejected this type of argument in Alvarez. The defendant in Alvarez argued that her
pending case had caused her stress and had disrupted her life. 6 This Court held that,
even if this claim was true, it did not entitle Alvarez to relief under the Sixth
Amendment, in the absence of any showing that it prejudiced her defense. 7 Like the
defendant in Alvarez, Crawford makes no showing as to how his separation from his
family actually prejudiced his defense.
Crawford next argues that, during the delay, he was incarcerated and had
no access to investigative or expert services. But though Crawford’s incarceration may
have hindered his access to investigators and expert witnesses, the delay did not hinder
him.
Third and finally, Crawford argues that, because of the delay, some
witnesses’ memories were “greatly dimmed”.
Crawford offers two witnesses as examples of memory loss. But one of
these witnesses had difficulty remembering the details about the incident when he
testified to the grand jury just two weeks after the shooting.
Although the second witness testified at trial that she could not remember
if the homicide victim tried to strangle Crawford before Crawford shot him, there is no
indication in the record that this witness had any such memory at any earlier time. And
6
Alvarez, 91 P.3d at 295.
7
Ibid.– 22 – 2432
if, when the witness said that she could not remember the purported strangling, she was
actually saying that she was unaware of this aspect of the occurrence, then this would
not prove a loss of memory. The record does not otherwise show that the witness was
ever aware of this purported happening.
In short, Crawford has not shown that he suffered actual prejudice from the
approximately six months of delay that was not attributable to him. For these reasons,
we reject Crawford’s Sixth Amendment claim.
The superior court’s refusal to enforce the subpoena for Trevon Brown
Crawford wished to call Trevon Brown to testify at his trial. Trevon was
the ten-year-old child of the homicide victim and Crawford’s sister, Kerri Nichols.
(He was thus Crawford’s nephew.) Trevon was present in the apartment on the night of
the homicide, and he gave a statement to the police about what he saw and heard.
A subpoena was issued for Trevon, which the state troopers served on his
mother, Kerri Nichols — but Nichols refused to accept the subpoena, and she also
refused to reveal Trevon’s location, other than to assert that her son was out of state for
the duration of Crawford’s trial. Nichols told Crawford’s standby counsel she did not
intend to bring Trevon to court.
When Crawford insisted that Trevon should testify, the trial judge held a
hearing for the express purpose of ascertaining “any concerns that Ms. Nichols might
have regarding Trevon Brown testifying”, and to “explor[e] ... the idea of telephonic
testimony”.
At this hearing, Nichols testified that she believed it would be frightening
and traumatic for Trevon to appear as a witness at Crawford’s trial. When the judge
– 23 – 2432
asked Nichols if it might be easier for Trevon to testify by telephone, Nichols replied, “I
think my preference would still be that he just be left alone.” She then added:
Nichols: Reliving [the homicide] is going to be
traumatic, horribly. You know, given those two options [of
appearing in person or appearing telephonically], if I had to
pick one — well, of course, he doesn’t want to actually be
here and see the person that killed his daddy. I just — that’s
— I don’t know.
Crawford told the court that he believed Trevon was still in Alaska, and that
Nichols was preventing Trevon from testifying because she believed he might not back
up her version of events on the night of the shooting. Crawford also called Nichols’s
adoptive father to testify concerning Nichols’s character for untruthfulness.
Based on the testimony at the hearing, the trial judge found that Nichols
knew where Trevon was, and that she had the ability to produce him as a witness.
Nevertheless, the judge decided not to compel Nichols to disclose Trevon’s location.
The judge stated that he was unsure whether he had the authority to make Nichols
disclose this information, and the judge also stated that he did not want to put Nichols
in a position where, by hiding Trevon’s whereabouts, she would be committing a crime.
The judge also worried that Nichols might have already committed the crime of witness
tampering, 8 by sending Trevon out of state after the troopers served the subpoena.
The judge further declared that he did not intend to threaten Nichols with
contempt. He stated that he found the prospect of incarcerating Nichols if she refused
to cooperate “distasteful”, and he added that he saw nothing to make him believe that
Nichols was motivated by “anything other than the best interests of the child.”
8
See AS 11.56.540(a)(2).
– 24 – 2432
The judge also stated that Crawford had failed to suggest any reason to
believe that Trevon’s testimony would differ from what was contained in his statement
to the police. And the judge suggested that Trevon might not be competent to testify,
even if he was subpoenaed.
For all of these reasons, the trial judge ruled that Trevon was “unavailable”
as a witness for purposes of Alaska Evidence Rule 804(a).
Crawford immediately objected to the judge’s decision. Crawford argued
that the judge was engaging in unfounded speculation when he assumed (for purposes
of his ruling) that Nichols would refuse to disclose Trevon’s whereabouts, even if the
court directly ordered her to do so, and when he assumed that Trevon would be unable
or unwilling to testify, even if Trevon was subpoenaed and brought to court.
The trial judge agreed with Crawford that the situation was uncertain — but
the judge declared that it was precisely these uncertainties that had convinced him not
to threaten Nichols with contempt for failing to disclose Trevon’s whereabouts.
The judge committed error in his handling of this situation.
A criminal defendant has the right to have a court issue, and enforce,
compulsory process to obtain any witness’s testimony (unless the witness has a privilege
not to testify). 9 Here, the witness was a young child, under the legal and physical
control of his mother. Nichols, the witness’s mother, had been served with a subpoena
for her son, but she refused to accept the subpoena, and she openly declared that she did
not wish to produce Trevon to testify at Crawford’s trial.
The trial judge refused to order Nichols to disclose her son’s whereabouts
— in part because the judge felt that it would be “distasteful” if he had to hold Nichols
9
See the Sixth Amendment to the United States Constitution and Article I, Section 11
of the Alaska Constitution.
– 25 – 2432
in contempt for refusing to answer. But that issue never arose, because the judge
declined to take even the preliminary step of directing her to answer. We agree with
Crawford that it was complete speculation for the judge to assume that Nichols would
disobey a direct order to disclose her son’s whereabouts.
The trial judge also stated that he did not wish to question Nichols about
Trevon’s whereabouts because, in answering these questions, Nichols might reveal that
she had already engaged in witness tampering. But the fact that Nichols might have
committed a crime in her efforts to defeat Crawford’s right of compulsory process was
hardly a justification for the judge’s refusal to take steps to enforce Crawford’s right.
Compare Smiloff v. State, 439 P.2d 772, 776 (Alaska 1968), where the
supreme court held that a trial judge committed error by refusing to issue a subpoena for
a potential eyewitness, based on the judge’s speculation that the witness might have to
be advised of their right against self-incrimination.
Finally, it was complete speculation for the judge to assume that Trevon
would refuse to testify, or would be found incompetent to testify, if he was brought to
court.
In sum, Crawford was entitled to have the superior court at least try to
enforce his right to compulsory process. It is possible that the superior court’s efforts
might have led to an uncomfortable confrontation with Kerri Nichols. But given
Crawford’s right to Trevon’s testimony, and given Nichols’s refusal to disclose her son’s
whereabouts, it was the court’s duty to engage in that confrontation.
We can not know if judicial efforts to procure Trevon’s attendance at trial
would ultimately have proved successful. But the judge was required to take reasonable
steps to try to enforce the subpoena — and he failed to do so.
– 26 – 2432
The superior court’s rulings that (1) Trevon Brown was “unavailable” as
a witness, as defined in Evidence Rule 804(a), but that (2) Trevon’s
hearsay statements were not admissible under Evidence Rule 804(b)
As we have explained, when the judge refused to enforce the subpoena for
Trevon, he tried to lessen the impact of his ruling by declaring that Trevon was
“unavailable” as defined in Evidence Rule 804(a)(5) — thus potentially allowing the
parties to introduce some of Trevon’s hearsay statements under the provisions of
Evidence Rule 804(b).
The judge’s action appears to have been prompted by the State. In both its
pre-trial pleadings and in its argument to the trial judge on this issue, the State took the
position that if the judge ruled that Trevon was unavailable as a witness, then Crawford
would be able to introduce Trevon’s pre-trial statements to the police under the residual
hearsay exception codified in Evidence Rule 804(b)(5).
We conclude that the judge committed error when he declared that Trevon
was “unavailable” for purposes of Evidence Rule 804.
Evidence Rule 804(a)(5) declares that a witness is “unavailable” if the
witness is absent and “the proponent of the [witness’s] statement has been unable to
procure the [witness’s] attendance ... by reasonable means[,] including process.”
Although this language, if read literally, might be construed to cover the situation
presented here, we doubt that the framers of the rule intended to vest judges with the
power to make witnesses unavailable simply by refusing to enforce a lawful subpoena,
or by refusing to employ other reasonable means of procuring the witness’s presence.
This error was compounded later, at Crawford’s trial, when the State
reversed its position and opposed Crawford’s attempt to introduce a portion of Trevon’s
pre-trial statement under Evidence Rule 804(b)(5).
– 27 – 2432
In his out-of-court statement, Trevon told the police that Crawford and the
victim, Anthony Brown (Trevon’s father) were in a room together, and Brown asked
Crawford to leave the house. Trevon stated that Crawford began screaming to his
children to put their coats on, because they were leaving, and then Brown “got all angry,
and [that’s] when he said all that stuff.”
When Crawford asked to introduce this evidence under Rule 804(b)(5), the
State opposed the admission of Trevon’s statement — arguing that the residual hearsay
exception in Rule 804(b)(5) was to be used only in exceptional cases, and that Trevon’s
statement was not more probative than the other available evidence on the point for
which it was offered, since several other witnesses were available to testify about what
was going on in the room at that time. In particular, the prosecutor argued:
Prosecutor: We have all these other folks [who] were
actually in the room that [have made] statements about what
was going on in the room. Now, I understand that Mr.
Crawford doesn’t like what they’re saying, but those are the
other statements.
The trial judge ultimately precluded Crawford from introducing Trevon’s
out-of-court statement. The judge explained his ruling this way:
The Court: [Trevon] was in [an adjoining] room,
unable to see what was going on in the other room. Mr.
Crawford is offering [Trevon’s statement] basically to try to
establish [the] timing ... of certain events, and [Trevon] would
never be able to do that because [he] ... wasn’t even there to
be able to see it. [It is apparently undisputed that], at some
point in time, Mr. Crawford was told ... to leave the house.
The question is when that happened. Trevon Brown’s
statement to the police is not probative on that point. I[t]
can’t establish the timing, so ... I’m denying [Crawford’s]
application [to introduce this evidence].
– 28 – 2432
This ruling was error. Trevon’s statement to the police, if believed,
supported an inference that the altercation between Crawford and Brown took place right
after Crawford yelled at his three children to get ready to leave the house. The trial
judge’s analysis does not address whether there was other, more probative evidence
available to prove this point. Rather, the judge concluded that Trevon’s statement could
not be relevant on this point, because Trevon only heard the altercation through a wall.
The fact that Trevon only heard the altercation through the wall, rather than
observing it visually, was a fact that might affect the weight of the proposed evidence,
but not its relevance. People who hear things happen (rather than see them happen) can
still testify about the timing of those events.
Moreover, if (as Crawford suggests) the sequence of events described by
Trevon was different from the sequence described by the other witnesses, this fact
established that his out-of-court statement was the most probative available evidence on
the point for which it was offered — because Crawford was trying to prove that the other
witnesses had not described the timing of events accurately. Assuming there was,
indeed, no more probative evidence available on this particular point, then — given the
trial judge’s earlier mistaken ruling that Trevon was “unavailable” for purposes of
Evidence Rule 804 — the judge should have admitted the evidence and allowed the jury
to decide what weight to give it.
Whether the trial judge’s mistaken rulings concerning Trevon Brown
require the reversal of Crawford’s convictions
Our next task is to determine whether the trial court’s erroneous rulings
with respect to Trevon Brown require the reversal of Crawford’s convictions. For this
purpose, we will assume that the trial judge violated Crawford’s constitutional right of
– 29 – 2432
compulsory process when the judge failed to take steps to enforce Trevon’s trial
subpoena. Thus, the test is whether the error is harmless beyond a reasonable doubt.
With regard to the timing of the events leading up to Crawford’s shooting
of Brown, several witnesses gave testimony concerning these events.
Kerri Nichols initially testified that, after Crawford yelled for his children
to get ready to leave the house, Brown accused Crawford of going for his gun, and then
Brown pushed Crawford down onto a couch. But later in her testimony, Nichols gave
a slightly different version: she said that Brown did not push Crawford onto the couch
until later , after Crawford started to talk about “mind control”.
Another witness, Darryl Nicholson, testified that Brown tackled Crawford
onto the couch, but Nicholson did not remember Crawford telling his children to get
ready to go, nor did he remember many other details of the incident.
Crawford’s wife, Marie Huesties, testified that Crawford yelled at the
children to get ready, and she then left the room to help them. Huesties said that she
could then hear Kerri Nichols screaming at Brown to stop, and telling Brown that she did
not want the children to “see [Crawford] like that”.
Crawford himself testified that he was trying to talk to his sister (Nichols)
about things that had happened when they were children, and that Brown interrupted and
told him to “shut [his] fucking mouth”, and then Nichols yelled at Brown to stop.
Crawford testified that Brown walked outside, but then Brown came back into the house
and he (Crawford) could sense that something was different — and that was when he
yelled at his children to get ready to leave.
Crawford testified that the next thing he remembered was Brown hitting
him, and he fell back onto the couch, and then Brown choked him until he was
unconscious. Crawford said he could hear Nichols yelling at Brown, and that he saw
Nichols trying to pull Brown off.
– 30 – 2432
Crawford’s oldest son, Kenneth, testified that he came out of a bedroom and
saw Brown choking Crawford, while Nichols was screaming and trying to get Brown off
of Crawford.
Arguably, Huesties’s and Crawford’s testimony — that the altercation
occurred soon after Crawford yelled at his children to get ready to leave — was more
probative than the testimony that Trevon could have offered, because Trevon was not in
the room with Crawford, Brown, and Nichols, and he only reported what he heard
through the wall. But Huesties and Crawford had a significant motive to portray events
in the light most favorable to Crawford, while Trevon did not. (Trevon’s father was the
one who was killed.) So on this particular point, Trevon’s testimony was arguably more
probative than Huesties’s and Crawford’s testimony.
Even so, it is difficult to see how the absence of Trevon’s testimony might
have influenced the jury’s verdict.
Crawford’s defense was that, when he shot Brown, he acted in self-defense
and in a state of mental confusion because Brown had strangled him. The precise timing
of the events we have been discussing — in particular, whether Brown became angry at
Crawford after Crawford yelled to his children to put their coats on — was not important
to Crawford’s claim of self-defense. Rather, the critical component of Crawford’s self-
defense claim was his assertion that Brown strangled him to the point of
unconsciousness, thus causing him to react in a mental haze.
Trevon was not in the living room with Crawford and Brown, and there is
nothing in the record to indicate that Trevon would have been able to testify as to
whether Brown did in fact strangle Crawford, and whether (as Crawford claimed) this
strangulation brought Crawford to the point of unconsciousness.
Potentially, Trevon’s testimony might have undermined Kerri Nichols’s
credibility as a witness; but this, too, seems doubtful. Trevon’s description of what he
– 31 – 2432
heard through the wall can easily be reconciled with Nichols’s initial testimony that,
right after Crawford yelled at his children to get ready to leave, Brown accused Crawford
of pulling a gun, and then he pushed Crawford down onto the couch.
We conclude that there is no reasonable possibility that the absence of
Trevon’s testimony affected the jury’s decision in this case. Thus, the trial court’s
various errors with respect to this matter do not require reversal of Crawford’s
convictions.
The superior court’s ruling that limited Crawford’s direct examination of
two witnesses who were recalled to the stand during the defense case
During the defense case, Crawford called two witnesses — Kerri Nichols
and Darryl Nicholson — who had already testified during the State’s case-in-chief.
During his direct examination of Kerri Nichols, Crawford sought to
question her on topics that were within the scope of the prosecutor’s earlier direct
examination (when Nichols testified during the State’s case). Crawford wanted to ask
Nichols these questions because, by his own admission, he had forgotten to ask these
questions during his earlier cross-examination of Nichols.
The trial judge ruled that, because Nichols and Nicholson had both already
testified during the State’s case, and because Crawford had already had the opportunity
to cross-examine these two witnesses on the topics covered during their earlier direct
examination by the prosecutor, it would now be improper for Crawford to ask Nichols
or Nicholson questions on any topic within the scope of their earlier direct examination.
The judge limited Crawford’s direct examination of these two witnesses to topics that
either were new, or that arose only during their earlier redirect examination.
– 32 – 2432
The judge then invited Crawford to outline the specific questions that he
wished to ask Nichols (the witness Crawford was examining at the time).
With respect to most of Crawford’s proposed questions, either the judge
indicated that the questions were proper, or the prosecutor stated that he had no
objection. However, the judge refused to let Crawford question Nichols regarding
certain topics. In particular, the judge told Crawford that the following questions were
within the scope of Nichols’s earlier direct examination, and that it would therefore be
improper for Crawford to:
• seek to elicit Nichols’s admission that, when the police interviewed her, she
did not volunteer the information that Crawford was walking toward her
while he was shooting — that Nichols only made this statement in response
to an officer directly asking her, “Was he coming towards you?”
• question Nichols concerning the grand jury testimony that she yelled at
Nicholson to call 911; according to Crawford, this testimony was relevant
to prove Nicholson’s state of mind, by suggesting that Nicholson might
have consciously hesitated to call 911, and that he might have had some
motive for failing to do so immediately.
• question Nichols about why she was “stressed out” that Crawford and his
family were coming over to her house on the night of the shooting.
In addition, the trial judge limited Crawford’s direct examination of the
second witness, Darryl Nicholson, in one respect.
This issue arose because, during Crawford’s earlier cross-examination of
Nicholson (during the State’s case), Crawford questioned Nicholson about some
apparent inconsistencies between his statements to the police, his grand jury testimony,
and his testimony on direct examination at trial — inconsistencies as to (1) whether
Crawford pulled out his gun before or after Brown tackled him, and (2) Brown’s reasons
– 33 – 2432
for walking outside just as Crawford was leaving the house. When Crawford cross-
examined Nicholson about these inconsistencies, Nicholson attributed them to his
intoxication on the night of the shooting. Afterwards, the prosecutor asked Nicholson
(during redirect examination) if he had a tendency to embellish things when he was
intoxicated, and Nicholson said “yes.”
When Crawford called Nicholson as a witness during the defense case,
Crawford asked him a series of questions about this assertion that he embellished things
when he was intoxicated. The prosecutor did not object to any of these questions, but
the trial judge cut Crawford off, sua sponte. The judge mistakenly declared that
Crawford’s questions were “beyond the scope of the redirect.” Crawford, however, did
not challenge the trial judge’s ruling, or point out that his questions were squarely related
to testimony that Nicholson gave on redirect examination. Instead, Crawford moved on
to a different topic.
On appeal, the State attempts to justify these limitations on Crawford’s
examination of the two witnesses by pointing out that judges have considerable
discretion to order and restrict the presentation of evidence to prevent litigants from
repeatedly questioning witnesses regarding topics on which they have already been
questioned. 10
It is true that trial judges have substantial discretion “to preclude repetitive
and unduly harassing interrogation.” Marron v. Stromstad, 123 P.3d 992, 1010 (Alaska
10
See Alaska Evidence Rule 403, which authorizes judges to exclude relevant evidence
“if its probative value is outweighed by ... considerations of undue delay, waste of time, or
needless presentation of cumulative evidence”, and Alaska Evidence Rule 611(a), which
requires judges to “exercise reasonable control over the mode and order of interrogating
witnesses and presenting evidence so as to (1) make the interrogation and presentation
effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3)
protect witnesses from harassment or undue embarrassment.”
– 34 – 2432
2005). But here, the trial judge did not simply forbid Crawford from repeating questions
he had earlier put to Nichols and Nicholson on cross-examination (when they testified
during the State’s case-in-chief). Rather, the judge prohibited Crawford from asking
questions on topics that he might have raised (but did not) when he cross-examined the
witnesses earlier.
The judge did not find that Crawford’s proposed questions were irrelevant,
improper, misleading, repetitive, harassing, or the like. Rather, the judge relied solely
on the theory that Crawford had somehow forfeited his right to ask these questions
because he neglected to take advantage of an earlier opportunity to raise these topics
when he cross-examined the witnesses during the State’s case. This forfeiture theory has
no basis in law.
Nevertheless, we conclude that these errors were harmless. With respect
to the specific questions that Crawford unsuccessfully sought to ask Nichols, these
questions did not concern issues that were central to the case, and they had no significant
impeachment value. Indeed, one of Crawford’s proposed questions (Crawford’s attempt
to elicit testimony that Nichols yelled at Nicholson to call 911) appears to have been
aimed at a completely speculative purpose. And with respect to Nicholson’s inconsistent
statements, his self-admitted tendency to “embellish” when he was intoxicated, and his
level of intoxication at the time in question, Crawford was able to apprise the jury of
these things, both in his cross-examination of Nicholson during the State’s case-in-chief
and in his direct examination of Nicholson during the defense case (before the trial judge
cut him off).
For these reasons, we conclude that the trial judge’s erroneous rulings did
not rise to the level of infringing Crawford’s right of confrontation, nor did these rulings
appreciably affect the verdict.
– 35 – 2432
The superior court’s refusal to allow Crawford to introduce certain
evidence to impeach Nichols and Nicholson
Crawford proposed to impeach Kerri Nichols by presenting the testimony
of Nichols’s adoptive father, Martin Nichols. According to Crawford, the senior Nichols
would testify that Kerri had a character trait for creating conflict. Crawford argued that
this character evidence was relevant to support Crawford’s theory that Kerri had
knowingly invited Crawford and Brown to her home for the purpose of orchestrating the
conflict that led to the homicide.
The trial judge ruled that the proposed evidence was not admissible under
Evidence Rule 608(a), which states that the credibility of a witness may be attacked by
opinion evidence, but only when that opinion refers to the witness’s character for
truthfulness or untruthfulness.
Arguably, Crawford was offering Martin Nichols’s testimony for a different
purpose: not to attack Kerri’s credibility as a witness, but rather to establish her actions
on the night of the homicide (her alleged plan to bring Crawford and Brown together so
that a conflict would erupt). But if the proposed character evidence was offered for this
purpose, it was barred by Evidence Rule 404(a). Rule 404(a) codifies the general
principle that evidence of a person’s character is not admissible if it is offered as
circumstantial evidence to prove that the person acted true to character on a particular
occasion.
Moreover, as the prosecutor pointed out when he opposed this evidence,
even if it was true that Kerri Nichols invited Crawford and Brown to her home in hopes
that they would argue or fight, this was not relevant to the central issue litigated at
Crawford’s trial: whether Crawford acted in self-defense when he shot Brown.
– 36 – 2432
For these reasons, we uphold the trial judge’s decision to preclude this
evidence.
With respect to Crawford’s proposed impeachment of Darryl Nicholson,
Crawford wished to impeach Nicholson by playing the video recording of Nicholson’s
interview with the police shortly after the homicide; Crawford asserted that this video
would show that Nicholson was not as intoxicated at the time of the homicide as he
claimed.
Before ruling on Crawford’s request, the trial judge reviewed the video.
Based on this review, the trial judge concluded that the video would provide a
misleading view of Nicholson’s level of intoxication, because Nicholson was sitting
down for most of the interview (thus saving him from having to stand and maintain his
balance). The judge also concluded that the video recording was not good enough to
allow the jurors to assess the two main indicia of intoxication that the police interviewer
relied on when he asserted that Nicholson was intoxicated: Nicholson’s watery,
bloodshot eyes and his odor of alcohol. In addition, the judge concluded that it would
be difficult for the jurors to disregard the content of the statements Nicholson made on
the video, and to focus solely on the indicia of Nicholson’s sobriety or intoxication.
These were all reasonable concerns, and we therefore conclude that the
judge did not abuse his discretion when he refused to allow Crawford to play the video
for this purpose.
Crawford also asked the trial judge to let him impeach Nicholson in another
fashion — by introducing evidence that, eleven years before, Nicholson’s ex-wife had
accused him of both physically and sexually assaulting her. Crawford argued that this
evidence was relevant to show that Nicholson was “capable of ... perverted criminal acts”
— thus supporting Crawford’s theory that, on the night of the homicide, Nicholson
– 37 – 2432
instructed Brown to attack and restrain Crawford so that he (Nicholson) could then
sexually assault Crawford’s children.
Alaska Evidence Rule 404(b)(1) bars the admission of evidence of a
person’s other bad acts when the evidence is offered to prove (1) that the person
characteristically engages in bad acts of that type, and (2) that the person therefore
probably acted true to character during the episode being litigated. 11
Crawford’s proposed evidence was prohibited by this rule.
Also, the trial judge ruled that even if it was true that Nicholson had
sexually assaulted his ex-wife eleven years before, there was no reasonable connection
between (1) the character trait arguably established by that earlier assault and (2) the
events that Crawford alleged were occurring in the residence on the night of the
homicide. In his brief to this Court, Crawford does not discuss this ruling or attempt to
rebut it.
For these reasons, we uphold the trial judge’s resolution of this issue.
The trial judge’s refusal to instruct the jury on defense of others
The trial judge refused Crawford’s request to instruct the jury on the
defense of “defense of others”, see AS 11.81.340, and the judge likewise refused to allow
Crawford to argue to the jury that he killed Brown while acting in defense of his wife and
children.
Crawford’s proposed defense is defined in AS 11.81.340. This statute
declares that a defendant is justified in using force upon another person “when and to the
extent the [defendant] reasonably believe[d] it [was] necessary to defend a third person”.
11
See Howard v. State, 239 P.3d 426, 430 (Alaska App. 2010).
– 38 – 2432
The statute further explains that this defense is established if, under the circumstances
as the defendant reasonably believed them to be, the third person would have been
justified in using that same degree of force in self-defense.
Under the self-defense statute, AS 11.81.335, a person is entitled to use
deadly force to protect themself from kidnapping. Relying on this provision of the self-
defense statute, Crawford argues that there was sufficient evidence to support a jury
verdict in his favor on the issue of whether he reasonably believed that his wife and
children were in danger of being kidnapped by Brown. Thus, according to Crawford,
his wife and children would have been justified in using deadly force against Brown to
defend themselves — and, under the “defense of others” provision of AS 11.81.340,
Crawford would likewise have been justified in using deadly force against Brown.
But Crawford’s theory of imminent kidnapping was not based on any action
that Brown took against Crawford’s wife and children. Rather, Crawford’s theory of
imminent kidnapping was based on the fact that Crawford had the keys to the family
vehicle on his person. Crawford argued that, because he had the keys, Brown subjected
Crawford’s wife and children to unlawful restraint when Brown held Crawford down on
the couch.
The trial judge ruled that this was not a valid theory of kidnapping — and
that, in the absence of any other evidence that Brown subjected Crawford’s wife and
children to a restraint or a threat of restraint, Crawford was not entitled to a jury
instruction on “defense of others”, nor was Crawford entitled to argue this theory of the
case to the jury.
On appeal, Crawford argues that there was some evidence from which the
jury could have concluded that he reasonably feared that deadly force was necessary to
protect his family from kidnapping. Crawford points to the evidence (1) that Brown
assaulted him right after he yelled at his children to get ready to leave the residence;
– 39 – 2432
(2) that Kerri Nichols had lost control of events and could not stop Brown from
strangling Crawford; and (3) that Crawford was disoriented and was having difficulty
locating his family and assisting them to get in the van so they could leave.
But these assertions, even if true, do not establish a kidnapping as that
offense is defined in AS 11.41.300(a).
More importantly, the primary difficulty in Crawford’s “defense of others”
claim is that, when Crawford testified at trial, he never said that he was afraid his family
would be kidnapped. Instead, Crawford testified that Brown strangled him to the point
where he was confused and barely conscious — and that, as a consequence, he feared for
his own life.
On direct examination, Crawford testified:
Crawford: I [saw Brown] coming out, and ... I just
remember thinking that, you know, I’m not — I’m not
awake. I’m not — I can’t stand up. I can’t really see things.
I can’t breathe. And if he gets his hands around my neck
again, I’m done [for], and that’s probably what he’s coming
to do.
Crawford gave similar testimony when he was cross-examined by the prosecutor:
Crawford: [T]he door’s open, and he’s coming out to
do me harm, in my mind, because ... I’m outside trying to get
away, [and] he [had] just done me harm, [and] he’s coming
to do it again. Yes. I fired in his direction, and I never
consciously acquired him as a target [or] actually saw that
happen. I know he was coming at me, and I know I shot in
his direction.
For these reasons, we agree with the trial judge that the evidence at
Crawford’s trial did not support a jury instruction on defense of others.
– 40 – 2432
The purported error in one of the jury instructions on self-defense
Crawford argues that one of the jury instructions on self-defense improperly
defined the circumstances in which the law would consider his conduct to be reasonable.
Here is the instruction in question; we have italicized the portion of the instruction that
Crawford objects to:
When these instructions use the term “reasonable
person” or “reasonably believes”, they mean a reasonable
person not affected by alcohol or drugs, and a reasonable,
mentally healthy person whose thinking is not influenced by
mental difficulties that skew or affect his ability to form
reasonable thought processes or act in a reasonable fashion.
This does not mean that a person affected by the
difficulties listed above may not use force in defense of self,
but only that the reasonableness of the person’s action must
be tested by the standard of what a non-affected person would
have believed was reasonable under the circumstances.
Mental difficulties would not include a person’s ability
to form reasonable thought processes as a result of losing
consciousness involuntarily.
At trial, Crawford argued that the second paragraph of this instruction
should have asked the jury to determine what a reasonable person could have believed
was reasonable under the circumstances (as opposed to would have believed).
The trial judge ruled that “would” was the proper word, since the
“reasonable person” test is an objective one. The judge’s ruling conforms to the wording
of the self-defense statute, and to the case law interpreting that statute. See, for instance,
the Alaska Supreme Court’s description of the test in Weston v. State, 682 P.2d 1119,
1121 (Alaska 1984): to be justified in using deadly force in self-defense, a defendant
– 41 – 2432
must have actually believed that deadly force was necessary to protect himself, and the
defendant’s belief “must be one that a reasonable person would have held under the
circumstances”. (Emphasis added)
On appeal, Crawford does not actually renew his challenge to the wording
of the instruction. Instead, he raises a related but different argument: he contends that
the prosecutor mischaracterized the law of self-defense in his summation — by telling
the jury that, for a killing to be justified based on self-defense, “the defendant must
actually believe that there was imminent use of unlawful force against him” and “the
reasonable person must reach the same conclusion.”
Crawford argues that the prosecutor’s formulation was wrong — that the
real question is whether a reasonable person could have reached the same conclusion.
Crawford did not object to the prosecutor’s argument at the time, so his
claim is not preserved. Moreover, the prosecutor was merely paraphrasing the law stated
in the jury instruction. And to the extent that the prosecutor’s wording might have
suggested something slightly different from the test contained in the jury instructions, we
note that the jurors were told that, regardless of the arguments of counsel, they were
required to decide the case in conformity with the court’s instructions. 12
For these reasons, we reject Crawford’s claim of error.
Crawford’s claim that the trial judge improperly restricted his voir dire
examination of the prospective jurors
Crawford argues that the trial judge impermissibly restricted his voir dire
of the prospective jurors regarding their potential bias against individuals who habitually
12
Jury Instruction No. 50 told the jurors that “arguments of counsel, if they depart from
the facts or from the law, should be disregarded.”
– 42 – 2432
carry guns for self-defense outside the home. This issue arose when, during voir dire,
Crawford asked one of the jurors:
Crawford: So if you heard evidence that I carried a
firearm, and it had a high capacity magazine, and I’m not in
law enforcement, I wasn’t at the shooting range, I was
carrying it for my own personal protection and that of my
family, with no permit, would that give you some pause —
[would it make you feel] some possible prejudice?
The prosecutor objected to Crawford’s question, and the judge sustained the objection:
The Court: [T]here’s no way a juror can answer that
fairly without hearing all the evidence ... in the case. And
you’re asking them to prejudge the facts [of] the case, and
that’s not permitted.
After the judge issued this ruling, Crawford continued to question the prospective jurors
about how they felt in general about people carrying guns, particularly guns with high-
capacity magazines.
When the judge later asked the parties if they had any challenges for cause,
Crawford complained that, because the judge had restricted his voir dire, he had not
developed an adequate record to support a challenge for cause — but that, in any event,
he would offer challenges to four jurors (Jurors Sa., C., Sw., and W.), and “maybe [Juror
L.]”.
In response to Crawford’s complaint about the earlier ruling, the judge
clarified (at some length) that Crawford was only restricted from asking questions that
invited the jurors to prejudge the facts of the case — and that there was a “long line” of
other questions that Crawford was free to ask (when voir dire continued) to elicit any
bias that the prospective jurors might have about guns or people who carry them.
– 43 – 2432
The judge denied Crawford’s challenges for cause — but Crawford does
not challenge those rulings on appeal.
Crawford then used peremptory challenges to excuse all but one of the
jurors who had caused him concern.
(The unchallenged juror was Juror L.. During jury selection, Juror L.
stated: “I question the reason for high-capacity magazines in places other than [firing]
ranges or, you know, battle zones. But they’re legal to own and ... anybody having one,
I would not hold it against them.”)
Crawford does not claim any error in the continued voir dire that resumed
the following week.
A trial judge has broad discretion to determine the scope of questioning on
voir dire, 13 and questions that invite the prospective jurors to prejudge the facts of the
case are not proper. Moreover, it is unclear what prejudice Crawford is now asserting
from the trial judge’s refusal to let him ask the question we quoted above. Crawford
used peremptory challenges to excuse all but one of the jurors that expressed any concern
about gun ownership, and the juror that Crawford did not challenge (Juror L.) stated that
he “would not hold it against [a person]” if the person carried a gun with a high-capacity
magazine. We note that Crawford does not argue that he was left with an insufficient
number of peremptory challenges when voir dire resumed.
The test for determining whether a voir dire examination was adequate to
detect juror bias is whether, “considering the totality of the questions permitted, ...
counsel gain[ed] enough specific information to intelligently exercise challenges for
13
Bachner v. Pearson, 479 P.2d 319, 335 (Alaska 1970).
– 44 – 2432
cause and enough general information to exercise peremptory challenges.” 14 The voir
dire in Crawford’s case, viewed as a whole, demonstrates that Crawford had enough
information about the prospective jurors’ attitudes toward guns to intelligently exercise
his challenges for cause and his peremptory challenges.
For these reasons, we reject Crawford’s argument that the trial judge
improperly restricted his voir dire.
The trial court’s decision to admit evidence that Crawford had several
firearms in his vehicle
At trial, the State wished to introduce evidence that Crawford was carrying
two guns, and that he had several other guns in his vehicle at the time of the homicide.
(All told, the State ultimately introduced evidence of six handguns, as well as
photographs of long guns.)
Crawford objected to this proposed evidence, arguing that the only relevant
gun was the one that he used when he shot Brown. With particular regard to the guns
in his vehicle, Crawford asserted that these guns were in the vehicle only because he had
packed the vehicle with belongings in anticipation of his impending move to Fairbanks.
But the prosecutor pointed out that Crawford’s wife had testified that, after
Crawford transported his family to Fairbanks, he intended to return to Anchorage to kill
the people who he believed had molested his children. The prosecutor argued that
Crawford’s possession of so many guns (both on his person and in his vehicle) was
relevant to the question of his homicidal state of mind — even if Brown and the other
people in the apartment that night were not Crawford’s original targets.
14
Bolhouse v. State, 687 P.2d 1166, 1172 (Alaska App. 1984); see also Evans v. State,
unpublished, 1994 WL 16196663, at *1 (Alaska App. 1994).
– 45 – 2432
The trial judge allowed the State to introduce the evidence of Crawford’s
guns. The judge concluded that it was up to the jury to decide what inference, if any,
should be drawn from Crawford’s possession of all these weapons, and each party could
therefore argue their theory of the evidence to the jury.
Having reviewed the record, we conclude that the judge’s ruling with
respect to the guns on Crawford’s person was not an abuse of discretion, but the
admission of the evidence pertaining to the guns in Crawford’s vehicle presents a closer
question. Nevertheless, we conclude that even if the judge’s ruling on this latter point
was error, Crawford has not shown that the judge’s decision unfairly prejudiced
Crawford’s defense.
We note in particular that, during the defense case, Crawford testified about
his longstanding interest in guns, and the fact that he had habitually carried a gun since
he was twenty-one years old. Crawford also elicited his wife’s testimony that she was
the owner of two of the handguns seized by the police, and that the boxes of guns and
firearm accessories found in their vehicle had recently been purchased by Crawford and
herself — some to sell at gun shows, and others to keep. Crawford’s wife also testified
(during the State’s case-in-chief) that she and Crawford had been packing up to move
to Fairbanks in the days preceding the shooting.
The prosecutor, in summation, argued that Crawford’s homicidal state of
mind was revealed by the guns that Crawford was carrying on his person, as well as
Crawford’s belief that his children were being molested. The prosecutor argued that
even if Crawford somehow believed that it was necessary for him to shoot Brown to
protect himself, that belief was not reasonable because Crawford was “armed to the
teeth” — a reference to the guns in Crawford’s immediate possession.
In sum, we conclude (1) that the evidence pertaining to the guns that
Crawford was carrying on his person was relevant to the issues before the jury; (2) that
– 46 – 2432
the evidence pertaining to the other guns in the vehicle presents a closer question; but
(3) Crawford was given a fair opportunity to offer testimony to explain his possession
of these numerous firearms; and (4) the prosecutor made a legitimate argument as to why
Crawford’s possession of the weapons on his person was relevant to the question of
whether Crawford reasonably believed that it was necessary to shoot Brown.
We therefore hold that any error in the trial judge’s ruling was harmless.
The trial judge’s rulings that two of Crawford’s young children were not
competent to testify
Under Alaska Evidence Rule 601, all persons are presumed to be competent
to testify as witnesses unless the court affirmatively finds either (1) “[that] the proposed
witness is incapable of communicating concerning the matter [at issue] so as to be
understood by the court and jury”, or (2) “[that] the proposed witness is incapable of
understanding the duty of a witness to tell the truth.”
In the context of a young child, our supreme court has said that this rule
requires a judge to “ascertain that the child is capable of receiving just impressions of the
facts of which he or she is to testify[,] and [is capable] of relating them truly, in addition
to understanding the necessity of testifying truthfully.” Sevier v. State, 614 P.2d 791,
794 (Alaska 1980).
It is important to note that both Evidence Rule 601 and the Sevier decision
speak of a child’s capacity to testify about events. Evidence Rule 601 does not require
— or allow — a judge to rule that a proposed witness is incompetent based on the
judge’s conclusion that the witness is unwilling to testify about events.
Before Crawford’s trial, the trial judge interviewed all three of Crawford’s
young sons — Kenneth (age six), Joseph (age five), and Alex (age four) — to determine
– 47 – 2432
whether they were competent to testify. Ultimately, the judge ruled that only the eldest
child, Kenneth, was competent to testify.
Following this ruling, Crawford told the judge he was considering filing a
petition for review, or a motion for reconsideration of the judge’s decision. In response,
the judge told Crawford that he would not reconsider his ruling with respect to the four­
year-old, Alex, because he was “just too young to understand [the role of a witness], and
[he] gets confused”.
However, the judge told Crawford that he was willing to interview the five­
year-old middle child, Joseph, one more time just before trial, and then reconsider the
issue of Joseph’s competency. Crawford agreed to this suggestion.
Later, when Crawford reminded the trial judge that he had agreed to
reassess Joseph’s competency, Crawford made no mention of having the judge interview
four-year-old Alex again. And when the judge conducted his second interview with
Joseph, Crawford made no request to have the judge reconsider his earlier ruling that
Alex was not competent to testify.
For these reasons, we conclude that Crawford abandoned any objection to
the judge’s ruling with respect to Alex, and we therefore turn to the judge’s ruling with
respect to Joseph.
During the second competency interview with Joseph (which took place
during Crawford’s trial), both the trial judge and Crawford himself asked Joseph a
number of questions in an attempt to assess the boy’s competency. Joseph answered
most (but not all) of these questions. But with very few exceptions, Joseph’s answers
were monosyllabic “yes” and “no” answers. Joseph gave his longest answer — “I didn’t
want to” — when Crawford asked Joseph if he had earlier expressed willingness to
“[talk] on a camera”.
– 48 – 2432
At the conclusion of this second interview, the trial judge found (and
Joseph’s answers demonstrate) that Joseph understood the difference between the truth
and a lie — although we note that the trial judge never made a finding on the separate
issue that is crucial for purposes of Evidence Rule 601: whether Joseph understood the
duty to tell the truth.
But despite the fact that the judge was satisfied of Joseph’s ability to
distinguish the truth from a lie, the trial judge again ruled that Joseph was not competent
to testify. The trial judge stated, “I don’t have ... confidence that, when [Joseph] is
communicating with us, ... he is telling us ... everything that might be there, or even [that
he] is going to be answering the questions [at all].”
Crawford challenges this ruling on appeal.
We acknowledge that the trial judge’s ruling on this issue is problematic.
It appears that the judge ruled that Joseph was incompetent, not because the boy was
unable to meaningfully communicate his knowledge to the court and jury, but rather
because he was unwilling to communicate his knowledge to the court and jury. Here are
more details of what the judge said:
The Court: Joey didn’t want to talk, and he chooses
not to talk even though he can answer. I don’t think it’s
anything about capability. [And] I don’t think — as ... I said
before, I don’t think [he’s] [un]able to understand the
difference between the truth and a lie. ... [H]e’s a smart kid.
But [whether he is] shy, [or] whatever the case may be, he
just doesn’t want to answer the questions. ... His choice,
basically, is he doesn’t [want to] say anything.
. . .
So ... I cannot find that he would be competent to
testify before the jury. ... I don’t feel confident that he will
– 49 – 2432
be confident [enough] to testify in front of a jury, whether we
do it [via] closed circuit TV or not.
As we have explained, Evidence Rule 601 speaks of a witness’s capacity
to answer questions in a manner that allows the court and the jury to understand the
witness’s answers; the rule does not speak of a witness’s willingness to answer questions.
Indeed, there are many witnesses who, for one reason or another, are unwilling to answer
the questions posed to them. This does not make them incompetent to be witnesses.
Even though the Sevier decision declares that trial judges have “great
discretion in determining the competency of a child to testify”, 15 judges must apply the
correct legal test for competency when they make this determination. Here, Crawford’s
trial judge expressly found that Joseph’s failure to meaningfully communicate was the
result of his unwillingness, not any incapacity.
We therefore conclude that the judge’s ruling was error. However, we also
conclude that this error was harmless.
As we have explained, Crawford’s defense to the homicide charge hinged
on the assertion that the victim, Brown, choked Crawford to the point where Crawford
lost his normal mental capacity, and then Crawford shot Brown a few minutes later in a
state of mental confusion.
Crawford’s assertion that Brown choked him was corroborated by the
testimony of Crawford’s wife, Marie Huesties, and his oldest son, Kenneth Crawford.
Huesties (testifying for the State) told the jury that Brown and her husband
got into an argument in the living room while their three sons (Kenneth, Joseph, and
Alex) were playing in a bedroom. In the middle of this argument, Crawford yelled,
“We’re going to leave,” so Huesties went to the bedroom to get the three children.
15
Sevier, 614 P.2d at 794.
– 50 – 2432
While Huesties was helping the children put on their coats and boots,
Huesties could hear some kind of altercation going on in the living room, with Kerri
Nichols screaming at Brown. Huesties testified that she hesitated to take the children
into the living room, because she was scared. But she finally took their hands and led
them outside the house — going through the living room on their way out. According
to Huesties, as they passed through the living room, she saw Brown holding Crawford
by the coat and “jerking him around” by the collar. Crawford wasn’t doing anything in
response: his arms were by his side, his eyes were half-open, and he looked “out”.
Huesties testified that the children were crying as she led them outside to
the car. When they reached the car, Huesties realized that it was locked, and that
Crawford had the keys. Crawford came out of the house a few moments later and
unlocked the car. Huesties testified that Crawford did not sound like himself. Then
someone came out of the house and yelled, “Hey, don’t forget ... ” — at which point,
Crawford pulled a gun and started shooting. Crawford paused, and then he started
shooting again. When Crawford was done shooting, they all piled into the van, and
Crawford drove away.
Kenneth Crawford (testifying for the defense) corroborated his mother’s
account of these events (as just described), except that he was more emphatic about
Crawford’s being choked. Kenneth testified that when he and his two brothers and his
mother passed through the living room on their way out of the house, Brown was not just
holding Crawford by the collar; rather, Brown was actively choking Crawford — both
with his hands and with the crook of his arm.
Given this testimony, and given the fact that Crawford made no offer of
proof that Joseph could add anything of substance to the testimony given by his mother
and his brother, we conclude that even if the trial judge should have allowed Joseph to
take the stand during the defense case, that error was harmless.
– 51 – 2432
In a separate but related argument, Crawford argues that the trial judge’s
ruling on Joseph’s competence was improperly motivated by a desire to save the court
system the expense of bringing Joseph to court. But at the time of the judge’s ruling,
Joseph was already in Anchorage and was available to testify. There was no money at
stake.
Should the trial judge have recused himself?
Before trial, Crawford asked Superior Court Judge Eric Aarseth to recuse
himself, arguing that the judge had displayed actual bias against Crawford or, at least,
an appearance of bias. Judge Aarseth denied Crawford’s motion, and Judge Aarseth’s
decision was immediately reviewed by Superior Court Judge Philip Volland. 16 Judge
Volland upheld Judge Aarseth’s decision, and thus Judge Aarseth remained Crawford’s
trial judge.
On appeal, Crawford renews his contention that Judge Aarseth should have
recused himself. He argues that Judge Aarseth consistently violated his constitutional
rights and exhibited “a demeanor that [was] the epitome of arbitrariness and
capriciousness.” More specifically, Crawford asserts that Judge Aarseth “attack[ed]”
him when he inquired into jurors’ specific prejudices during voir dire, and he “exploded
into angry yelling” when Crawford complained that his standby counsel had failed to
subpoena his witnesses.
Under AS 22.20.020(a)(9), a judge is forbidden from acting in any matter
“in which ... the [judge] feels that, for any reason, a fair and impartial decision cannot be
given.” In addition, Canon 3E(1) of the Alaska Code of Judicial Conduct requires judges
16
This interlocutory review by a second judge is expressly required by AS 22.20.022(c).
– 52 – 2432
to disqualify themselves in “[any] proceeding in which the judge’s impartiality might
reasonably be questioned”.
As this Court explained in Phillips v. State, 271 P.3d 457, 466-67 (Alaska
App. 2012), Alaska case law and statutory law is conflicting on whether a judge can be
removed from a case against their will on this second ground, “appearance of
impropriety”. But as we did in Phillips, we will decide Crawford’s case under the
assumption that Alaska law mandates disqualification of a judge when the circumstances
give rise to a reasonable appearance of bias, even when there is no proof that the judge
is actually biased.
As to what sort of appearance of bias will require a judge’s disqualification,
we note that the Comment to Alaska Judicial Canon 2A declares that the test is “whether
the [judge’s] conduct would create in reasonable minds a perception that the judge’s
ability to carry out judicial responsibilities with integrity, impartiality, and competence
is impaired.” 17
Although Alaska Judicial Canon 3(B)(4) requires judges to be “patient,
dignified, and courteous to litigants”, judges are generally not required to remove
themselves from a case simply because they have made remarks that are critical of, or
even hostile to, an attorney or a litigant. 18 Moreover, a judge’s adverse rulings are not
a ground for disqualification unless the party moving for disqualification shows that the
judge’s rulings were the result of personal bias developed from a non-judicial source. 19
17
Quoted and applied in State v. Dussault, 245 P.3d 436, 442 (Alaska App. 2011).
18
Hanson v. Hanson, 36 P.3d 1181, 1183-87 (Alaska 2001) (relying upon and quoting
Liteky v. United States, 510 U.S. 540, 555-56; 114 S.Ct. 1147, 1157; 127 L.Ed.2d 474(1994)).
19
Nelson v. Jones, 781 P.2d 964, 972 (Alaska 1989).
– 53 – 2432
Crawford claims that Judge Aarseth verbally attacked him during jury
selection. The record does not support this claim. Crawford also asserts that the judge
called him “selfish”, and that the judge declared that Crawford had a “mental defect” and
a “borderline mental illness”. But the transcript shows that the judge did not say these
things; these are Crawford’s personal interpretations of the judge’s remarks.
It is true that, in one pre-trial hearing, when Crawford complained that his
standby counsel had refused to issue subpoenas for certain defense witnesses that
Crawford wanted, Judge Aarseth apparently lost his temper and raised his voice when
Crawford refused to accept the judge’s resolution of this issue. But this exchange took
place outside the presence of the jury and, while it demonstrated the judge’s frustration,
it did not establish that the judge had a personal bias against Crawford arising from a
non-judicial source.
We acknowledge that, at times, Judge Aarseth gave the appearance of being
hostile toward Crawford’s decision to proceed pro se. The judge repeatedly expressed
his displeasure with this decision, up until the point where the judge ruled that Crawford
was not competent to represent himself — a ruling that this Court overturned on petition
for review. But Crawford has failed to establish that the judge acted from any personal
bias, or that the judge’s statements and actions on this issue gave rise to an appearance
of bias that warranted Judge Aarseth’s disqualification from Crawford’s case.
Crawford’s post-verdict motion for a new trial
On May 9, 2010 — three months after the jury found Crawford guilty of
second-degree murder and various other offenses — Crawford filed a motion for a new
trial. In his motion, Crawford alleged that he was entitled to a new trial on five grounds.
– 54 – 2432
These five grounds were: (1) that Crawford was unable to adequately
prepare his defense to the charges without the assistance of expert witnesses and an
investigator (at public expense); (2) that the judge should have required Trevon Brown
to appear as a witness at trial; (3) that the judge erred when he found that two of
Crawford’s sons, Joseph and Alexander, were not competent to be witnesses; (4) that
when Crawford called Kerri Nichols and Darryl Nicholson as witnesses in the defense
case, the judge should not have restricted Crawford’s direct examination of these
witnesses by forbidding Crawford from raising topics that he might have raised when he
cross-examined these witnesses during the State’s case-in-chief; and (5) that the judge
erred when he declined to instruct the jury that Crawford’s shooting of Brown was
potentially justified as an act taken in “defense of others” (under the theory that
Crawford was protecting his wife and children from kidnapping).
But each of these grounds had already been litigated and resolved against
Crawford. In essence, Crawford was simply asking the trial judge to reconsider his
earlier rulings on these issues and to reverse himself.
Crawford’s motion faced another legal hurdle: it was untimely. Alaska
Criminal Rule 33(c) provides that any motion for a new trial based on grounds other than
newly discovered evidence “shall be made within 5 days after [the] verdict or finding of
guilt”. Just after the jury returned its verdicts on February 8, 2010, Judge Aarseth
expressly informed Crawford of the five-day time limit imposed by Rule 33(c).
When Crawford filed his motion, he asked the trial judge to relax the filing
deadline and accept the late-filed motion. Crawford blamed the three-month delay on
his standby counsel. But Crawford discharged his standby attorney at the end of
February. The trial judge found that Crawford had failed to show good cause for
relaxing the deadline until May.
– 55 – 2432
The trial judge made an alternative ruling on the merits of Crawford’s
motion. He noted that each of Crawford’s points was “thoroughly litigated either before
or during [the] trial”, and he declared that Crawford’s arguments for reconsideration
were “unpersuasive”.
On appeal, Crawford argues that the judge should have reached the merits
of his claims. But as we have just explained, the judge did reach the merits of these
claims: he declared that he was not convinced by Crawford’s arguments on the merits.
Crawford asserts in a conclusory fashion that the judge’s view of the merits
was wrong. But Crawford does not present any actual argument on these points.
Leaving aside the question of whether Crawford should have received
public funding to hire an expert witness (a question that we will address shortly), we
have already explained why the trial judge’s rulings on Crawford’s various issues were
either correct or, if incorrect, harmless. We therefore uphold the trial judge’s denial of
Crawford’s motion for a new trial.
Crawford’s claim of cumulative error
Crawford also raises a claim of cumulative error. That is, he asserts that
even if none of his claims of error is sufficient, standing alone, to justify a new trial, this
Court should nevertheless order a new trial because of the cumulative effect of the
various errors that Crawford has identified.
As we have explained in earlier decisions, a claim of cumulative error is
really a claim of cumulative prejudice: this doctrine applies in cases where the total
– 56 – 2432
impact of the errors at trial “is so prejudicial that the defendant was deprived of a fair
trial, even if each individual error was harmless.” 20
Here, we have concluded that many of the alleged errors identified by
Crawford were not errors at all. And with respect to the true errors that Crawford has
identified, we conclude that those errors, even in combination, did not result in
recognizable prejudice to Crawford. We therefore reject Crawford’s claim of cumulative
error.
The trial court’s refusal to provide public funds for Crawford to obtain the
services of an expert witness
This leaves one remaining issue: whether the trial court committed error
when it rejected Crawford’s request for public funds to hire an expert witness.
Central to Crawford’s defense was his claim that, just prior to the shooting,
the victim (Brown) attacked him and strangled him to the point of unconsciousness or
semi-consciousness. On appeal, Crawford argues that if he had retained a neurologist
or other medical expert, this expert might have testified that strangulation could affect
a person’s thinking or perception, and this testimony might have helped the jury
understand how strangulation could have affected Crawford’s perception of the threat
Brown posed. In particular, Crawford argues that this expert testimony would have
helped the jury assess the reasonableness of his mistaken belief that he was justified in
using deadly force in self-defense.
Crawford argues that, as an indigent defendant, he was entitled to public
funds to retain such an expert witness, and that the superior court improperly abridged
20
Sawyer v. State, 244 P.3d 1130, 1137-38 (Alaska App. 2011), quoting Roussel v.
State, 115 P.3d 581, 585 (Alaska App. 2005).
– 57 – 2432
his rights by (1) failing to order the Public Defender Agency or the Office of Public
Advocacy to pay for his proposed expert, and (2) ruling that court system funding was
not available for this purpose under Alaska Administrative Rule 12(e).
(a) The underlying court proceedings and rulings
Early in the proceedings, when Crawford elected to represent himself, he
indicated his interest in hiring an investigator to aid his defense. The judge assigned to
Crawford’s case at that time, Superior Court Judge Michael Spaan, offered the alternative
suggestion of appointing standby counsel to assist Crawford. Crawford later
peremptorily challenged Judge Spaan, and the case was assigned to Superior Court Judge
Patrick McKay.
At a subsequent representation hearing, Judge McKay also proposed
assigning standby counsel to assist Crawford with the investigation of the case, as well
as to act as Crawford’s legal advisor at trial. At this point, Crawford expressed doubt
that he would need an investigator; he told Judge McKay, “What I really think would
help my case the most ... is a medical expert.”
Crawford then asked Judge McKay if the court could appoint an expert at
public expense, since Crawford was indigent. In response, Judge McKay issued an order
assigning the Office of Public Advocacy “to assist [Crawford] in pre-trial matters
including investigation and request for medical expert[,] and to act as stand-by counsel
at trial.” The judge told Crawford that he could file a motion if the Office of Public
Advocacy declined to provide funds for Crawford’s expert witness.
After the Office of Public Advocacy learned of its appointment as standby
counsel, the agency filed a motion to withdraw. The agency argued that its enabling
statute, AS 44.21.410(a)(5), only authorized the agency to represent defendants to the
– 58 – 2432
extent that the defendant was eligible for representation by the Public Defender Agency
— and the Public Defender Agency had taken the position that its enabling statute,
AS 18.85.100(a), did not authorize it to act as standby counsel (i.e., to act as a
subordinate legal advisor to a pro se defendant).
The Office of Public Advocacy also took the position that, unless Crawford
was its client, the agency was not responsible for securing or paying for expert witnesses
or an investigator. The agency suggested instead that, if the court could identify a private
attorney who was agreeable to acting as Crawford’s standby counsel, the court might
appoint that attorney under Alaska Administrative Rule 12(e).
After hearing the Office of Public Advocacy’s position, Judge McKay
allowed the agency to withdraw, and he appointed a private attorney under
Administrative Rule 12(e).
At several subsequent pre-trial hearings, Crawford reiterated his desire to
retain the services of a medical expert. He told the court that he wanted a medical expert
to testify about his mental condition on the night of the homicide — in particular, how
his mental state might have been affected if he was choked to the point of
unconsciousness.
Judge McKay told Crawford that if he wished to retain an expert at public
expense, his standby counsel would have to apply to the court system for the funds.
Referring to the provisions of Administrative Rule 12(e)(5)(D)-(E), 21 the judge informed
21
Administrative Rule 12(e)(5)(D)-(E) provides:
(D) Extraordinary expenses will be reimbursed only if prior authority has been
obtained from the administrative director, upon recommendation by the assigned trial
judge or the presiding judge. The assigned trial judge may recommend extraordinary
expenses up to a total amount not to exceed $1,000.00, and the presiding judge may
recommend an amount not to exceed an additional $1,500.00. Extraordinary expenses
(continued...)
– 59 – 2432
Crawford that he could only approve up to $1000 for an expert, and that expenses above
that amount would have to be approved by persons higher up in the court system.
At a trial call on June 16, 2009, the State complained that it had not
received notice of two potential defense experts, “one relating to strangulation, and one
relating to child molestation.” At a subsequent pre-trial hearing, the State reiterated that
if Crawford “intends to call experts for any [purpose], he needs to file the appropriate
notice.”
On August 3rd, Crawford told the court that his standby counsel was not
helping him contact experts, and he asked for more time so he could contact them
himself. Judge McKay granted Crawford a three-month continuance — until November
2, 2009 — to allow him to line up his experts. Judge McKay also reminded Crawford
that he would have to apply to the administrative director of the court system if the cost
of these experts was going to exceed $2500.
(At this same hearing, Judge McKay released Crawford’s standby counsel,
and the judge later appointed a new attorney to serve as Crawford’s standby counsel.)
By the time of the next hearing in Crawford’s case, Judge McKay had been
re-assigned to the superior court’s civil docket, and Superior Court Judge Jack W. Smith
21
(...continued)
exceeding $2,500.00 may be authorized only in extremely complex cases by the
administrative director upon the recommendation of the presiding judge. In this
paragraph, “extraordinary expenses” are limited to expenses for:
(i) Investigation;
(ii) Expert witnesses; and
(iii) Necessary travel and per diem expenses. Travel and per
diem may not exceed the rate authorized for state employees.
(E) If necessary to prevent manifest injustice, the administrative director may
authorize payment of compensation or expenses in excess of the amounts allowed
under this rule.
– 60 – 2432
was assigned to Crawford’s case. In advance of this hearing, Crawford filed a request
under Administrative Rule 12(e)(5)(D) for $7500 in court system funds to pay for DNA
testing.
Judge Smith denied Crawford’s request. He ruled that it was inappropriate
to spend court system money under Administrative Rule 12(e) when Crawford was
eligible for complete legal representation — either by the Public Defender Agency or the
Office of Public Advocacy — under AS 18.85.100(a).
Shortly afterwards, the presiding judge of the Third Judicial District
decided that Crawford’s case should be re-assigned to Superior Court Judge Eric
Aarseth, who had more experience in criminal law.
When the parties assembled in court on November 2, 2009 (at the end of
the three-month continuance granted by Judge McKay), Crawford renewed his request
for court system funds to pay for DNA testing. Like Judge Smith, Judge Aarseth denied
Crawford’s request for these funds, but on a different ground: Judge Aarseth concluded
that a reasonable defense attorney would not spend money for the proposed DNA testing.
Crawford has not challenged that ruling.
Judge Aarseth also observed that, even though Crawford had been given
three months to line up his proposed experts, Crawford had not filed any other specific
requests for public funds to pay for other experts. Crawford responded that his standby
counsel had told him that there was no point in contacting experts if there was no money
to pay for them. Crawford’s standby counsel then interjected:
Standby Counsel: Judge, if I may. We were in the
process of getting experts. Toxicology — this is an expert
case. He needs experts to try this case, and the State has
eight or ten. And we were in the process of getting experts.
I know locally [one] doctor that I was in the process of
contacting, and I think that would’ve been excellent for this
– 61 – 2432
case. However, Judge Smith denied the funding, and once
we — Judge McKay, it [seemed], had every intention of
providing him with experts, and paying for it. [But] Judge
Smith denied his motion for funding for experts. And at that
point, I could not, in good faith, you know, tell these experts
to look at these reports and, you know, we wanted to retain
them. We had no money, we weren’t going to be able to
retain them. So that’s why you don’t have any CVs or
anything in front of you. And that’s the only reason. We
were going to do it. ... [T]hat’s the only reason why he
waived [the three months under Rule 45] since August 3rd.
And so another judge comes along and denies it, and he’s left
high and dry.
The Court: Okay. I don’t see from the record there
was ever a promise there was going to be any funding for
experts. [He was given] an opportunity to line up experts, an
opportunity to make that application. But the record
[currently in front of me] doesn’t support that. ... Mr.
Crawford was willing to waive time to see if he could get the
experts, but there was never a promise to Mr. Crawford that
he was going to get the funding. And there is a lack of
anything in front of me [to support a request for funds].
I mean, if I’m supposed to [decide] whether a reasonable
attorney would hire these experts, there’s nothing in front of
me [that would allow me] to make that determination, so ...
Crawford: I’ve got it [now]. I brought the ...
The Court: Mr. Crawford, ...
Crawford: ... exhibits ...
The Court: ... I’m telling you what exists right now.
Okay?
– 62 – 2432
Crawford: Well, I was just — I’ve got it right now, if
you’ll let me present it ex parte. I mean, I’d rather not
explain the whole defense ...
The Court: I’m not going to [let you] present it ...
ex parte.
Crawford: Well, ... then I guess I’ll have to, you
know, show them my whole defense before trial. But if that’s
what I have to do to show you that I deserve experts, I’ve got
it ...
The Court: No, what I’m saying is that [the] time has
passed, and that we’re moving on to the next stage [of the
proceedings]. Okay? There was three months that was given
[to you] to do this, and it didn’t happen[.]
Later in the hearing, there was continued discussion along these same lines.
Judge Aarseth reiterated his ruling that Crawford had had three months to apply for the
funding of expert witnesses, and he had failed to do so, and now the time for making
those applications had passed. Judge Aarseth pointed out that even if he gave Crawford
more time to submit applications for public funding, Crawford would have to line up
expert witnesses who would be reasonably available — and then, even if Crawford did
that, Judge Aarseth would still have no idea whether the court system would approve
funding above $1000.
Later in the hearing, Judge Aarseth presented another rationale for his
decision. He declared that he would not revisit Judge Smith’s prior ruling that, if
Crawford wanted to hire experts at public expense, Crawford would have to accept full
legal representation by the Public Defender Agency or the Office of Public Advocacy:
The Court: You’ve got this idea ... that somehow this
pot of money is going to be opened up because you’ve
– 63 – 2432
[chosen to represent yourself]. There is not an unlimited pot
of money, and it is protected. The money that is there in
these budgets is argued over every single year. Nobody ever
gets [all] the money that they want, and there is a process that
is in place [for deciding how to spend it]. ...
The constitution requires that we have to provide
someone an attorney if they can’t afford it, and we have to
provide some money so they can get their witnesses here.
There’s money for investigations. But ... we have an agency
that does that, and they’ve got the attorneys, and they have to
jealously guard that money. Presumably, they’re going to
spend that money wisely. But there is this process that we go
through, and the public has some trust that actually we’re
going to have people that are trained and ... know how to use
these experts. They know how to pick the experts [that] are
needed and are relevant. They know how to prepare the
experts.
And, you know, ... there are limitations in terms of
how far you can go. You know, you don’t have to accept it,
but I’m telling you the ruling’s been made there — made by
another judge. I’m not changing that ruling.
Your choice [to waive counsel] is [also] a choice of the
budget that you have. There may be some money to bring
[in] a few [of the] witnesses ... you want, but it isn’t going to
be anywhere near what you want. Okay?
Thus, Judge Aarseth ruled that when Crawford rejected court-appointed counsel,
Crawford also gave up the right to have the government provide the funding for his
proposed expert witness.
– 64 – 2432
(b) A review of the case law on the question of whether indigent
defendants who waive the right to court-appointed counsel and choose
to proceed in propria persona are nevertheless entitled to public funds
to hire expert witnesses
The government has a limited obligation, under the federal constitution,
to provide expert witnesses at public expense for indigent criminal defendants. The
seminal case on this point is Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed.
2d 53 (1985).
In Ake, the United States Supreme Court held that, when an indigent
defendant’s sanity is clearly at issue, and will be a significant factor affecting the
outcome of the defendant’s trial, the due process clause requires the government to
provide the defendant with access to a competent psychiatrist (although not necessarily
one of the defendant’s choosing). 22 The Supreme Court explained that, in such
circumstances, a psychiatric evaluation would constitute one of the “basic tools of an
adequate defense.” 23
Although Ake was a capital case, most of the courts that have considered
this issue since 1985 have concluded that the holding in Ake applies to non-capital cases,
and to non-psychiatric experts. 24
However, the decision in Ake dealt with an indigent defendant who was
represented at public expense, and whose court-appointed attorney asked for additional
funds to retain the services of a psychiatrist. Thus, the question decided in Ake was
22
470 U.S. at 83, 105 S. Ct. at 1096.
23
470 U.S. at 76-77, 105 S. Ct. at 1092-93.
24
Cases on this issue are listed in Moore v. State, 889 A.2d 325, 337-38 (Md. 2006), and
in Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr, Criminal Procedure
(3rd ed. 2007), §11.2(e), Vol. 3, pp. 645-46, 652-58 & n. 187.
– 65 – 2432
whether the government might sometimes be required to provide more than purely legal
assistance to an indigent criminal defendant, when that additional assistance is so
important as to constitute one of the “basic tools” of an adequate defense.
Alaska statutory law already guarantees this type of funding to indigent
defendants who are represented at public expense. The Public Defender Agency’s
enabling statute, AS 18.85.100(a), declares that an indigent person charged with a
serious crime is entitled to be represented by an attorney “and ... to be provided with the
necessary services and facilities of this representation, including investigation and other
preparation.”
Thus, the real question in Crawford’s case is whether the government is
required to provide this same funding for investigative services and expert witnesses
when an indigent defendant waives legal representation and chooses to proceed
in propria persona.
As we explained in the preceding section of this opinion, both Judge Smith
and Judge Aarseth ruled that an indigent defendant’s right to hire expert witnesses at
public expense is part and parcel of the defendant’s right to counsel at public expense —
and thus, when a defendant chooses not to be represented by an attorney at public
expense, the defendant also gives up the right to demand public funding for ancillary
services such as expert witnesses.
Courts from other jurisdictions are split on this issue.
In People v. Cardenas, 62 P.3d 621 (Colo. 2002), the Colorado Supreme
Court held that a defendant who wanted the state to pay for a private translator was
required to accept representation by court-appointed counsel. 25 And in DeFries v. State,
597 So.2d 742 (Ala. Crim. App. 1992), the Alabama Court of Criminal Appeals applied
25
Cardenas, 62 P.3d at 623.
– 66 – 2432
the same rule to an indigent pro se defendant who asked the trial court for funds to hire
a private investigator. 26 The trial court refused this request, informing the defendant that
investigative services were among the benefits he gave up by electing to proceed
pro se. 27 The court of criminal appeals upheld the trial court’s ruling, concluding that
DeFries “knew what he was doing and his choice was made with eyes open.” 28
But several other courts have reached a contrary result.
In Matter of Cannady, 600 A.2d 459 (N.J. 1991), an indigent defendant was
charged with murdering her live-in boyfriend. Cannady’s family hired an attorney to
represent her, but the family could not afford to hire an expert on “battered women’s
syndrome”. 29 Cannady’s privately retained attorney asked the trial court to compel the
Public Defender to pay for the proposed expert, and the trial court granted this
motion. 30 The Public Defender then appealed the trial court’s decision, arguing that it
was only required to pay for such ancillary services if the defendant was represented by
the agency. 31
The New Jersey Supreme Court disagreed:
New Jersey’s policy is to provide counsel for all
indigent defendants, not just for indigents represented by the
[Public Defender]. The [Public Defender] Act’s language
26
DeFries, 597 So.2d at 744-46.
27
Id. at 746.
28
Ibid. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279; 63 S. Ct.
236, 242; 87 L. Ed. 268 (1942)).
29
Cannady, 600 A.2d at 459.
30
Ibid.
31
Id. at 459-60.
– 67 – 2432
states that eligibility for [its] services includes not just a
defendant’s inability to hire private counsel but also a
defendant’s ability to pay for all other necessary expenses of
representation. Nowhere in the Act is there a requirement
that a defendant obtain legal services from the [Public
Defender] before he or she may obtain ancillary services
from it. The Legislature intended that a defendant’s right to
obtain necessary ancillary services for his or her defense
depends on the defendant’s indigence and not on whether the
defendant is represented by outside counsel.
Cannady, 600 A.2d at 462.
(The New Jersey court then laid out a framework for implementing this
rule, giving the Public Defender substantial discretion to decide what services it would
provide to these non-client defendants — essentially, the same discretion the agency
would exercise in cases where the defendant was represented by an agency attorney or
by a contract attorney employed by the agency.) 32
State v. Burns, 4 P.3d 795 (Utah 2000), was another situation where the
defendant’s family hired a private attorney to represent the defendant, and then that
attorney asked for public funds to hire an expert. The trial court denied this request,
holding that defendants were only entitled to such financial assistance if they accepted
court-appointed counsel. 33 The Utah Supreme Court reversed. The court interpreted
Utah’s statutes as giving indigent defendants two discrete rights: the right to counsel at
public expense, and the right to state funding for “investigatory and other facilities
32
Cannady, 600 A.2d at 462.
33
Burns, 4 P.3d at 797.
– 68 – 2432
necessary for a complete defense” — so that the availability of this second type of
funding did not hinge on the defendant’s acceptance of court-appointed counsel. 34
In State v. Wool, 648 A.2d 655 (Vt. 1994), the Vermont Supreme Court
likewise ruled that, under the Vermont statutes, an indigent pro se defendant was entitled
to investigative and expert witness services at public expense. The trial court in Wool
had ruled that a defendant was only entitled to those services if they elected court-
appointed counsel. 35 But on appeal, the Vermont Supreme Court interpreted Vermont’s
Public Defender Act as giving defendants the right to such funding, even when the
defendant does not accept court-appointed counsel. 36
The New Mexico Supreme Court reached a similar result in State v. Brown,
134 P.3d 753 (N.M. 2006). However, the New Mexico court’s ruling was not based on
legislative intent, but rather on the inherent authority of courts to protect the rights of
indigent defendants.
The defendant in Brown was represented by pro bono counsel who asked
the trial court to order the Public Defender to provide funding for expert
witnesses. 37 The trial court denied this request, ruling that the Public Defender’s funds
were only available to the indigent defendants whom the agency represented. 38 On
interlocutory appeal, the New Mexico Court of Appeals agreed that the trial court had
no authority to order the Public Defender to pay expert witness fees for indigent
34
Id. at 800-01.
35
Wool, 648 A.2d at 659.
36
Id. at 658, 660.
37
Brown, 134 P.3d at 755.
38
Ibid.
– 69 – 2432
defendants who were not represented by the agency. 39 But the New Mexico Supreme
Court reversed, holding that all indigent defendants were constitutionally entitled to
public funding for expert witnesses. 40 The supreme court declared that “the courts are
the ultimate guardians of indigent defendants’ rights” — and the fact that the New
Mexico Legislature had failed to set aside a budget appropriation for this purpose did not
prevent the courts from taking action to obtain the funding necessary to protect these
defendants’ rights. 41
(c) A review of the pertinent Alaska statutes and court rule
We now turn to the question of how to interpret Alaska law on this subject.
The Alaska Legislature created the Alaska Public Defender Agency to serve
the needs of indigent criminal defendants. AS 18.85.100(a), the statute that defines an
indigent defendant’s right to legal representation, declares that an indigent person
charged with a serious crime is entitled, not just to legal representation, but also to “the
necessary services and facilities of this representation”:
An indigent person who is under formal charge of
having committed a serious crime ... is entitled
(1) to be represented ... by an attorney to the same
extent as a person retaining an attorney is entitled; and
39
Id. at 756.
40
Id. at 759.
41
Id. at 760.
– 70 – 2432
(2) to be provided with the necessary services and
facilities of this representation, including investigation and
other preparation.
For these purposes, an “indigent person” is defined as a person who does
not have the means “to provide for payment of an attorney and all other necessary
expenses of representation without depriving the party or the party’s dependents of food,
clothing, or shelter”. 42 This means that, even when a person might be able to pay for an
attorney (if that were the only expense), the person still qualifies as an “indigent” — that
is, still qualifies for the services of the Public Defender Agency — if the person can not
also afford the “other necessary expenses of representation”. Arguably, these “other
necessary expenses” might include the funds to hire an expert witness in a case where
expert testimony is needed.
The Alaska Legislature has also created the Office of Public Advocacy to
provide legal representation to indigent criminal defendants “who are entitled to
representation under AS 18.85.100 and who cannot be represented by the public
defender agency because of a conflict of interests.” AS 44.21.410(5). This statute does
not expressly mention ancillary services. But by implication, they are included —
because the legislature’s purpose was to have the Office of Public Advocacy substitute
fully for the Public Defender Agency in situations where the Public Defender has a
conflict.
The Alaska statutes do not expressly address the question of whether the
Public Defender Agency’s attorney services and its ancillary services are severable. But
the wording of AS 18.85.010 suggests that the legislature intended the Public Defender
Agency (and the Office of Public Advocacy, in cases of conflicts) to be the sole source
42
AS 18.85.170(4) (emphasis added).
– 71 – 2432
of funding for the legal services given to indigent defendants — including both the
services of attorneys and any required ancillary services.
We note, in particular, the cross-reference between the two subsections of
AS 18.85.100(a). Subsection (1) of the statute declares that an indigent criminal
defendant is entitled “to be represented ... by an attorney”, while subsection (2) declares
that the indigent defendant is entitled “to be provided with the necessary [ancillary]
services and facilities of this representation”.
The phrase “this representation” apparently refers back to the attorney
services described in subsection (1) of the statute. If so, then the legislature’s choice of
words suggests that the legislature viewed the two types of services described in
AS 18.85.100(a)(1)-(2) as one integrated whole, not separate and severable guarantees
of public funding.
When Crawford’s case was litigated in the superior court, the court at
various times suggested that Alaska Administrative Rule 12(e) might provide an
alternative source of funding for pro se indigent defendants who wished to retain expert
witnesses. But on closer inspection, the language of Administrative Rule 12(e) appears
to prohibit this.
Administrative Rule 12(e)(1) requires the Alaska Court System to provide
(and pay for) the legal representation and related expenses of any indigent person who,
as a matter of law, is entitled to counsel at public expense — but only if the court
“determines that the appointment [of counsel] is not authorized by AS 18.85.100(a) [the
statute defining the scope of the Public Defender Agency’s authority to represent
indigent persons] or AS 44.21.410 [the statute defining the scope of the Office of Public
Advocacy’s authority to represent indigent persons]”.
In other words, Administrative Rule 12(e) applies only if the Public
Defender Agency and the Office of Public Advocacy are not authorized to provide the
– 72 – 2432
representation. Thus, by its terms, Administrative Rule 12(e) does not seem to apply to
indigent criminal defendants.
If, indeed, the pertinent statutes and court rule do not authorize the
expenditure of public funds for indigent pro se defendants who wish to hire expert
witnesses, the remaining question is whether, despite the lack of statutory authorization,
the government of Alaska is nonetheless constitutionally required to provide these
ancillary services at public expense to defendants who waive their right to a court-
appointed attorney and choose to represent themselves.
In the previous section of this opinion, we noted the judicial split on this
issue. Some courts have ruled that these ancillary services are available only to
defendants who choose to be represented by court-appointed counsel; other courts have
ruled that the two types of services (attorney representation, and the ancillary services
of investigators and expert witnesses) are severable, and that indigent defendants are
entitled to the ancillary services even if they choose to represent themselves.
But among this latter group of cases, all but one of the courts’ rulings
hinged on statutory interpretation. These courts construed their statutes to mean that the
two types of services were discrete and severable, so that indigent defendants might
choose to avail of themselves of attorney services, or ancillary services, or both.
Only one court — the New Mexico Supreme Court in State v. Brown — has
adopted the view that indigent pro se defendants have a constitutional right to obtain
investigative and expert witness services at public expense, even though the legislature
only intended to provide these services to defendants who accepted court-appointed
counsel.
– 73 – 2432
(d) Why we conclude that we need supplemental briefing on this
issue
As we have described in the preceding sections, courts are split on the
question of whether indigent defendants who waive their right to counsel and choose to
represent themselves are nevertheless entitled to public funds to hire expert witnesses.
The answer to this question hinges on issues of statutory interpretation and, potentially,
issues of constitutional law.
This question is a matter of first impression in Alaska, and our resolution
of this issue will affect not only Crawford but many other criminal defendants as well.
In order to obtain the best input on this question, we conclude that we should solicit
supplemental briefs not only from Crawford and the State, but also from our state’s two
criminal defense agencies, the Public Defender Agency and the Office of Public
Advocacy.
We recognize that these two defense agencies conceivably have financial
interests that would prevent them from arguing Crawford’s side of this question. We
therefore direct the agencies to tell us if that is indeed the case. If so, we will then
appoint independent counsel to argue Crawford’s side.
Conclusion
With respect to all of Crawford’s claims of error except the superior court’s
refusal to provide an expert witness at public expense, the judgement of the superior
court is AFFIRMED.
With respect to Crawford’s claim that he was entitled to public funds to hire
an expert witness, even though he declined an attorney at public expense, we will solicit
– 74 – 2432
supplemental briefs from the parties, as well as amicus curiae briefs from the Public
Defender Agency and the Office of Public Advocacy.
Within 30 days, those two agencies must tell us whether they believe they
can ethically brief Crawford’s side of this controversy. If neither agency believes that
it can do so, this Court will appoint an independent attorney to brief Crawford’s position.
Once we have ascertained whether we need to appoint an independent
attorney to brief Crawford’s position, we will establish a briefing schedule.
– 75 – 2432