Opinion
Court of Appeals No. A-8999.
August 23, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Charles R. Pengilly, Judge. Trial Court No. 4FA-04-874 CR.
David K. Allen, Assistant Public Advocate, Fairbanks, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
In spite of his counsel's concerns that she might not be prepared for trial, David E. Williams insisted that he did not want any further delay of his trial date. Williams's counsel reluctantly acquiesced to Williams's position and did not move for a continuance. Eleven days later, Williams went to trial and was convicted.
On appeal, Williams claims that his insistence on proceeding to trial despite his attorney's concerns that she would be unprepared was "analogous to an outright waiver of the right to counsel. . . ." Based upon this contention, Williams argues that it was plain error for the superior court not to engage in a detailed inquiry similar to the inquiry that we require trial courts to engage in when a defendant insists on proceeding without counsel and representing himself. Williams also argues that the superior court committed plain error by allowing Williams to block his attorney's efforts to obtain a continuance. Williams contends that the superior court should have determined that the decision to move for a continuance and to waive time under the speedy trial rule was a decision for the attorney, not the defendant. We conclude that the superior court did not commit plain error on either point.
Factual background
On March 19, 2004, the State of Alaska charged Williams with kidnapping and assault in the first degree. The court consolidated Williams's case with that of his co-defendant, Komson Spencer. Williams's right to a speedy trial under Criminal Rule 45 commenced on March 15, 2004, and would have ended on July 13, 2004, absent any tolling. Trial was scheduled to begin the week of May 31, 2004. The week before the scheduled trial, on May 28, 2004, at a calendar call hearing, Williams, Assistant Public Advocate Susan M. Carney (Williams's counsel), the prosecutor, and Superior Court Judge Charles R. Pengilly, engaged in the following discussion:
AS 11.41.300(a)(1)(C) and AS 11.41.200(a)(1), (2) (4), respectively.
Carney: Your Honor, Mr. Williams and I are having a rather serious disagreement about whether we should go to trial as scheduled or put it off. He does not want to put anything off.
Court: I guess it's up to him, isn't it?
Carney: I guess it is, Your Honor.
Court: I mean, unless you — you're in a position where you can't represent him effectively.
Carney: Your Honor, I have some serious concerns about that.
. . .
Carney: Mr. — I just spoke to Mr. Williams very recently and he wants to go to trial as soon as possible.
Court: Okay.
Carney: But I would also second [co-defendant's counsel's] concern that we've received discovery within the last ten days.
Court: What is the Rule 45 situation in this case?
Carney: I think your July week is very close to the outside of Rule 45 but still within it.
. . .
Court: Well, what's the State's position on the two requests before the Court?
Prosecutor: The State would not oppose a continuance. . . .
Court: Well, Ms. Carney, I guess I should invite one more round of discussion from you. Where do you stand?
Carney: Your Honor, I agree with the court that it's the defendant's right. Right now, we're not at the outer reaches of Rule 45. I have very serious concerns about whether he will receive effective assistance of counsel in an unclassified felon[y] if we start as scheduled.
Court: Does he understand that?
Carney: I have done my best to explain that I think it would be much more prudent for his defense to wait. But he — he has a different opinion, Your Honor.
Court: Okay. Well, Mr. Williams, sir, is — I'm understanding that you want to go to trial as soon as possible, you don't care whether your attorney is ready to go or not. Is that correct?
Williams: Yeah. I guess if you put it that way.
Court: Well, that's the way — that's the way it is.
Williams: It's not that I don't care.
Court: Well, what she's saying is that she may not be in a position to provide you the effective assistance you're entitled to, tells me, that you know, you're . . .
Williams: Well, I think . . .
Court: . . . going to waive . . .
Williams: . . . there was sufficient time where she — she — from the time of the incident and now . . .
Court: Well, you know, I don't think your opinion of her state of preparation and her ability to represent you is going to count for much. Ms. Carney is a professional. She knows whether she can represent you properly or not. She has great doubts about that. If you want to go ahead in spite of her concerns, you have a right to do that.
Williams: Yes, sir.
Court: But, you know, you're waiving your right to her effective assistance to some extent, based on the fact that she says she can't provide it to you that quickly.
Williams: Right.
Court: That's what you want to do?
Williams: Yes, sir.
. . .
Court: Ms. Carney, how soon can you be ready to go?
Carney: Your Honor, you know, if the court wants it next week, I will do everything I can to be more ready by next week.
Court: No, I understand that. Realistically, given your state.
. . .
Carney: I think two or three weeks I could be without concern about being . . . effective.
After this exchange, Judge Pengilly set the matter over for five days, to June 2, at which time a status hearing was held to further discuss the issue.
At the status hearing, counsel for both Spencer and Williams stated that their clients did not want a continuance and wanted to go to trial as soon as possible. Again, Carney expressed her concern about her ability to provide effective assistance to Williams if the trial started on schedule. She claimed that a continuance of about two more weeks would alleviate her concerns about having sufficient time to prepare. Judge Pengilly responded that his calendar did not permit that long of a continuance, and that trial would either have to start soon or be continued significantly beyond two weeks. Carney stated that she could not start trial in what remained of the week of May 31 because she had to be in Barrow all day on Friday, June 4. Carney stated that she had "grave doubts" that she would be ready if the court ordered the trial to start in the week of Monday, June 7, but that she would proceed if ordered. Judge Pengilly stated that he was not ordering Carney to do anything. He stated that Williams had a right to have his case resolved in a timely matter and noted that if Williams insisted on having it done in that manner, at the expense of his right to the effective assistance of counsel, he was entitled to do that. Judge Pengilly commented, "I'm happy to continue it, if that's your preference and your client will consent. . . ." To which, Carney responded, "Your Honor, Mr. Williams does not agree to a continuance." Judge Pengilly set trial for six days later, on June 8, 2004.
Williams's trial began on June 8. At the conclusion of the trial, the jury found Williams and Spencer guilty of kidnapping and assault in the first degree. Williams now appeals to this court.
Why we conclude that Williams has not established that Judge Pengilly committed plain error
Williams contends that Judge Pengilly should not have allowed him to insist on proceeding to trial when his attorney stated that she might not be prepared to proceed. He argues that Judge Pengilly should have ruled that the decision whether to move for a continuance was a decision for his attorney to make. He argues that Judge Pengilly should have warned him of the dangers of forcing his attorney to proceed to trial before she was ready. He argues that Judge Pengilly should have engaged in a detailed inquiry similar to the inquiry that we have required courts to engage in when the defendant insists on waiving counsel and representing himself.
To succeed on his claim of plain error, Williams must show: (1) that the trial court's assumption — that the decision of whether to request a continuance was ultimately the defendant's rather than his attorney's — constituted an obvious error and (2) that the error substantially affected his right to a fair trial, i.e., was obviously prejudicial.
See Crutchfield v. State, 627 P.2d 196, 198 (Alaska 1980) (footnotes and citations omitted).
Courts in Alaska have not resolved the issue of whether a defendant's counsel can unilaterally seek a continuance of trial and thereby toll the running of Criminal Rule 45. That is, it is debatable under Alaska law whether an attorney can move for a continuance in the absence of the defendant's consent to this continuance. When apprised of Carney and Williams's disagreement over whether to proceed to trial, Judge Pengilly commented, "I guess it's up to him, isn't it?" To which Carney responded, "I guess it is, Your Honor[,]" and later, "I agree with the court that it's the defendant's right."
See Baker v. State, 110 P.3d 996, 999 (Alaska App. 2005); State v. Jeske, 823 P.2d 6, 8 n. 1 (Alaska App. 1991).
Williams argues that Judge Pengilly erred by not, sua sponte, conducting a detailed inquiry to make certain that Williams understood the consequences of his decision to proceed to trial despite his attorney's concerns that she might not be fully prepared. He argues that Judge Pengilly should have engaged in an extensive inquiry, such as the inquiry that we require trial courts to engage in when the defendant insists on waiving his right to counsel and representing himself. But Williams's situation was very different from that of a defendant who insists on proceeding without the benefit of counsel. Williams had counsel, and Williams's counsel would have certainly made clear to Williams what the dangers were in having her proceed to trial before she was prepared. And she could have discussed with him the specific problems that she had encountered in preparing his defense. The record shows that Judge Pengilly did caution Williams. Judge Pengilly told Williams that Carney was a professional who knew whether she was in a position to represent him properly. Basically, he told Williams to listen to his attorney. Judge Pengilly could have engaged in further inquiry, but it would have carried the risk of the judge interfering in Williams's attorney-client relationship.
See McCracken v. State, 518 P.2d 85, 91 (Alaska 1974); Gladden v. State, 110 P.3d 1006, 1009 (Alaska App. 2005) (citing James v. State, 730 P.2d 811, 814 n. 1 (Alaska App. 1987)).
Furthermore, there is no basis in the record to support a conclusion that Williams was prejudiced by his decision to forego a continuance. Carney was appointed to represent him almost two months before the May 28 conference. Trial did not commence until eleven days later. When Williams's trial started, Carney did not move for a continuance or claim that she was unprepared. On the record before us, Carney had adequate time to prepare for trial and did not claim at the time that trial commenced she was not fully ready to proceed.
Conclusion
We conclude that Williams has not shown plain error. We accordingly AFFIRM his convictions.
I agree with my colleagues that the judgement of the trial court should be affirmed, but I reach that conclusion for different reasons.
Williams refused to agree to a delay of his trial even after his defense attorney warned him that, if the trial was held soon, she might not have adequate time to prepare. Williams argues that, under these circumstances, his insistence on an early trial amounted to a waiver of his right to effective assistance of counsel. Williams further argues that this waiver was invalid because the trial judge failed to adequately inform him of the dangers he was facing by giving up the right to effective assistance of counsel.
But Williams fails to assert that he received ineffective assistance from his trial attorney. That is, he does not assert that, when he went to trial eleven days later, his attorney's representation was incompetent in any way. This is fatal to Williams's claim of error.
Even if we assume that Judge Pengilly was obliged to give Williams a more detailed explanation of the benefits of counsel and the dangers of proceeding to trial with an attorney who was unprepared, any error would be harmless unless Williams could show that he in fact went to trial with an attorney who was unprepared to such a degree as to deprive Williams of the effective assistance of counsel. In the absence of proof that Williams received incompetent representation, Williams is merely complaining that Judge Pengilly should have given him better warnings concerning a possibility that never actually occurred.
The same principle applies when a trial judge violates the rule announced in LaVigne v. State, 812 P.2d 217 (Alaska 1991) — the rule that applies when a defense attorney announces an intent to rest the defense case without presenting the testimony of the defendant.
Under LaVigne, the trial judge must personally address the defendant, must explain that a criminal defendant has the right to take the stand regardless of their attorney's advice or wishes, and then must ask the defendant to state their choice on this matter. But even when a trial judge fails to conduct this mandated inquiry, this error will not undermine the defendant's conviction unless the defendant meets the threshold burden of showing that the LaVigne error was prejudicial:
LaVigne, 812 P.2d at 222.
[T]o meet this burden, the defendant must "show he would have offered relevant testimony had he been allowed to testify at his trial." [Any error is harmless if the defendant] has neither shown nor offered to show that he would have had any relevant testimony to offer had the trial court conducted a LaVigne inquiry.
Weist v. Anchorage, 929 P.2d 668, 669 (Alaska App. 1996), quoting LaVigne, 812 P.2d at 221. Accord, Knix v. State, 922 P.2d 913, 919 n. 8 (Alaska App. 1996).
Compare Stephan v. State, 711 P.2d 1156, 1165 (Alaska 1985), where the Alaska Supreme Court held that even when the police fail to comply with their duty to tape record a custodial interview, there is no reason to suppress the contents of that interview "if no testimony is presented that the [evidence concerning the content of the defendant's] statement is inaccurate or [that the statement] was obtained improperly, apart from violation of the [taping requirement]".
In Williams's case, the application of this same principle leads to the conclusion that any potential deficiency in Judge Pengilly's colloquy with Williams must be adjudged harmless — because Williams has failed to assert (much less demonstrate) that the alleged error caused him any harm.