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Oviuk v. State (4/4/2008) ap-2155

Oviuk v. State (4/4/2008) ap-2155

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

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                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us

         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


TARIEK OVIUK, )
) Court of Appeals No. A-9572
Appellant, ) Trial Court No. 3PA-05-167 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 2155 - April 4, 2008]
)
Appeal    from     the
          Superior   Court,  Third  Judicial  District,
          Palmer, Eric B. Smith, Judge.

          Appearances: Sharon B. Barr, Assistant Public
          Defender,  and  Quinlan  G.  Steiner,  Public
          Defender,  Anchorage, for the Appellant.   W.
          H. Hawley, Assistant Attorney General, Office
          of    Special   Prosecutions   and   Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.
          
          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          COATS,  Chief Judge.
     
          Tariek  Oviuk  appeals  his convictions  for  attempted
first-degree  murder1 and second-degree assault.2  Before  Oviuks
trial  began,  Superior Court Judge Eric B.  Smith  ordered  that
Oviuk  be  shackled  during  the trial.   Then,  because  of  his
decision  on  the  shackling  issue, Judge  Smith  denied  Oviuks
request  to  represent  himself.  The judge  concluded  that  the
shackling  would make it difficult for Oviuk to move  around  the
courtroom and present an effective defense.
          On  appeal, Oviuk challenges both the shackling  ruling
and  the self-representation ruling. We conclude that we need not
resolve  the shackling issue  because, even assuming for purposes
of  argument  that  Judge  Smith was justified  in  ordering  the
shackling,  Judge Smith erred when he denied Oviuks  request  for
self-representation on this basis.  Under the Sixth Amendment  to
the  United  States  Constitution as interpreted  in  Faretta  v.
California,3  and  under  article I, section  21  of  the  Alaska
Constitution as interpreted in McCracken v. State,4 it was Oviuks
choice  whether  to persist in asserting his right  to  represent
himself despite the problems that the shackling would pose.

          How    the   shackling   issue   and   the   self-
          representation   issue  were  litigated   in   the
          superior court
     
          The  self-representation issue arose  on  the  day
that  Oviuks trial was scheduled to begin.  When the parties
assembled  in court, Oviuks attorney told Judge  Smith  that
Oviuk wanted to represent himself.  In response, Oviuk  told
Judge  Smith  that  what he really wanted  was  a  different
attorney.   But  Oviuk stated that, if the court  would  not
give  him  a  new attorney, then he would like to  represent
himself.
          Judge Smith cautioned Oviuk about the dangers  of
self-representation.  Oviuk responded by  stating  that  he
still  wished  to represent himself if the trial  could  be
delayed so that he would have more time to prepare.
          At  this point, Judge Smith stated that he  would
convene  a  closed  hearing so that  Oviuk  could  air  his
complaints   about  his  attorney.    Hearing   this,   the
prosecutor  told  Judge  Smith  that  the  State  would  be
requesting  that Oviuk be shackled during  the  trial,  and
that   Judge   Smith  should  consider  this   [w]hen   ...
considering  whether Mr. Oviuk is going to be  representing
himself.
          Following   the  closed  hearing,   Judge   Smith
concluded that Oviuk had not presented adequate grounds  to
be  appointed  a  different  attorney.   Judge  Smith  told
Oviuk that his current attorney would continue to represent
him  unless  Oviuk  decided  to represent  himself.   Oviuk
responded   that,  if  Judge  Smith  would   give   him   a
continuance, he would represent himself.
          At  the  prosecutors  request,  a  state  trooper
assigned  to  Judicial Services offered an  explanation  to
Judge  Smith  about the need to have Oviuk shackled  during
the  trial.  The  trooper set out reasons why  he  believed
that,  at  a minimum, Oviuk should be ordered to  wear  leg
shackles.
          Judge Smith stated that, although he had concerns
about  Oviuks ability to represent himself on such  serious
charges,  he  believed that Oviuk, with assistance  from  a
standby  counsel, could represent himself.  But  the  judge
indicated  that, because of the security concerns,  he  was
going to deny Oviuks request to represent himself.
          At  this point, Oviuks attorney asked Judge Smith
to  reconsider the shackling issue. Judge Smith decided  to
hold  another  hearing  on  the shackling  issue  the  next
morning,  before jury selection.  Judge Smith  then  added,
[T]o be perfectly fair to Mr. Oviuk, if ... I conclude that
we  dont  have a courtroom security issue, then I would  be
prepared to let Mr. Oviuk represent himself.
          The next morning, at the hearing on the shackling
issue,  a state trooper again explained the basis  for  the
States request to have Oviuk shackled during the trial.  At
the  conclusion of the hearing, Judge Smith reconfirmed his
decision  that it was necessary to shackle  Oviuk.    Judge
Smith then declared that, because of the shackling, he  had
decided  to  deny  Oviuks request for  self-representation.
The  judge  pointed out that the shackling  would  make  it
difficult  or  impossible  for Oviuk  to  move  around  the
courtroom.   Judge  Smith also declared that  it  would  be
inappropriate for Oviuk to cross-examine the victim of  the
assault (Oviuks girlfriend):
         
              The  Court:  Given the issues  revolving
         around  the  victim,  given  ...  Mr.  Oviuks
         history  of  not  being able to  comply  with
         court orders, given the dynamic in a domestic
         violence   situation  and  the   [particular]
         history  between  Mr. Oviuk and  the  alleged
         victim  in  this case, and ... the  deference
         that  I  must  pay  to the Judicial  Services
         evaluation  of  a  particular  defendant,  Im
         going  to  authorize the  shackling  in  this
         case.   I  had previously ruled that ...  the
         shackling  ... would preclude Mr. Oviuk  from
         representing himself, [because] it  would  be
         very   difficult  for  him  to   present   an
         effective  defense, because he  couldnt  walk
         around  the  courtroom.  He couldnt  approach
         the  witnesses; he couldnt approach the jury.
         And the cross-examination of the victim would
         be  rife with the potential for mistrial. ...
         [I]t  would be utterly inappropriate for  Mr.
         Oviuk  to  cross-examine the alleged  victim.
         It  just  would be a situation rife with  the
         possibility of disruption.
Why  we conclude that Judge Smith erred  when
he denied Oviuks request to represent himself

          Under  both the federal  and  state
constitutions,  a criminal  defendant  has  a
constitutional right to self-representation.5
          A    defendant   who   chooses   to
represent  himself  or  herself  takes  on  a
difficult task.  And, before a judge allows a
defendant  to  exercise the  right  of  self-
representation, the judge must  first  inform
the   defendant  of  the  dangers  of   self-
representation   and   must    explain    the
advantages of the assistance of counsel.6
          But  once  a judge is assured  that
the defendant understands the dangers of self-
representation and the advantages of counsel,
the  court  can  deny the defendants  request
only   if  the  defendant  is  not  minimally
capable  of  presenting  their  case   in   a
coherent fashion ... [or] if the defendant is
not   capable  of  conducting  their  defense
without being unusually disruptive.7
          Here,  after Judge Smith  explained
the  dangers of self-representation  and  the
advantages of counsel, Oviuk persisted in his
desire  to  represent  himself  if  he  could
obtain a delay of the trial.  Based on Oviuks
responses,  and on his other observations  of
Oviuk,  Judge Smith concluded that Oviuk  was
capable  of  representing  himself  with  the
assistance of standby counsel.  And, although
Judge  Smith never explicitly stated that  he
was  willing  to  give  Oviuk  more  time  to
prepare,  the  judge declared that  he  would
have   granted  Oviuks  request   for   self-
representation  but for  the  ruling  on  the
shackling issue.
          Thus,  the record shows that  Judge
Smiths  sole basis for denying Oviuks request
for  self-representation was  the  fact  that
Oviuk  would  be shackled during  the  trial.
This was error.
          Judge    Smith    was   justifiably
concerned  about the fairness of a  trial  in
which  the defendant appears shackled to  the
jury.  As the Sixth Circuit remarked in Lakin
v.   Stine,8    When  a  shackled   defendant
represents himself, the jury is faced with  a
constant  reminder  that  the  defendant   is
shackled  as  he makes statements,  questions
witnesses,    and    introduces    evidence.9
Therefore,  when a defendant  who  is  to  be
shackled at trial indicates that he wishes to
waive  his right to counsel and exercise  his
          right of self-representation, it is incumbent
on  the  trial  judge to  explain  the  added
difficulties and potential prejudice that the
shackling will pose before the judge  accepts
the   defendants  waiver  of  the  right   to
counsel.10
          Nevertheless, it is the  defendants
decision   whether   to  persist   in   self-
representation despite the shackling.   Judge
Smith committed error when he ruled that  the
fact  of  shackling, standing  alone,  was  a
sufficient  basis to end all inquiry  and  to
deny Oviuks request to represent himself.
          The  State  argues that  we  should
uphold  Judge Smiths decision on  the  ground
that Oviuks request to represent himself  was
untimely.   The  State  concedes  that  Judge
Smith  did  not deny Oviuks request  on  this
ground, but the State points out that we have
the authority to affirm a trial courts ruling
on   any  legal  theory  established  by  the
record.11
          We acknowledge that a defendant may
not  invoke  the right of self-representation
as   a   means  of  disrupting  the  judicial
process.12   But Judge Smith never  made  any
such  finding,  nor did he  indicate  in  any
other  fashion  that  the  timing  of  Oviuks
request  was problematical.  Without  such  a
finding,  it  would  be improper  for  us  to
affirm  Judge  Smiths decision on  the  basis
suggested by the State.
          The   State  suggests  that,   even
though  Judge  Smith  never  considered   the
timing of Oviuks request a problem, the judge
was  nevertheless  required  to  deny  Oviuks
request  for self-representation  because  it
was  made  on  the first day of  trial.   The
State  contends  that,  if  Judge  Smith  had
granted  the request, his ruling  would  have
been  illegal or, at a minimum, an  abuse  of
discretion.
          It  is true that, under the law  of
some   jurisdictions,  a  request  for  self-
representation must be made before trial  and
if  it  is  not,  it must be denied.13   But,
currently  at least, that is not the  law  in
Alaska.   Thus,  the State is wrong  when  it
asserts  that Judge Smith would clearly  have
abused  his  discretion  if  he  had  granted
Oviuks request.
Conclusion

When  a  defendant who is to be  shackled  during
trial  asserts his constitutional right of  self-
representation, the defendant must be  given  the
choice  whether to persist in self-representation
despite the problems and potential prejudice that
the shackling will pose.  It is error for a court
to   deny  the  request  for  self-representation
based  merely  on  the fact of  shackling  alone,
without  giving  the defendant this  choice.   We
therefore reverse Oviuks convictions.
In  so  doing,  we  express  no  opinion  on  the
correctness of Judge Smiths decision to order the
shackling.   And, if the State chooses  to  retry
Oviuk, Oviuk shall be allowed to re-litigate this
issue.
The judgment of the superior court is REVERSED.
_______________________________
     1 AS 11.31.100(a) and AS 11.41.100.

     2 AS 11.41.210(a)(1).

     3  422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed. 2d 562
(1975).

     4 518 P.2d 85, 91 (Alaska 1974).

5 Faretta, 422 U.S. at 821, 95 S. Ct. at 2534; McCracken,
518 P.2d at 89-91.

6 See Martinez v. Court of Appeal of California, Fourth
Appellate  Dist., 528 U.S. 152, 162, 120  S.  Ct.  684,
691,  145  L. Ed. 2d 597 (2000); Gladden v. State,  110
P.3d  1006, 1009-10 (Alaska App. 2005); James v. State,
730 P.2d 811, 813 (Alaska App. 1987).

7 Lampley v. State, 33 P.3d 184, 189 (Alaska App. 2001)
(citations omitted).

8 431 F.3d 959 (6th Cir. 2005).

9 Id. at 965.

10See Abdullah v. Groose, 44 F.3d 692, 695 (8th Cir. 1995),
revd  en  banc on other grounds, 75 F.3d 408, 410  (8th
Cir. 1996).

11See, e.g., Vaska v. State, 135 P.3d 1011, 1019 (Alaska
2006);  State  v. Joubert, 20 P.3d 1115,  1118  (Alaska
2001).

123 Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin
S. Kerr, Criminal Procedure  11.5(d), at 753-54 (3d ed.
2007).

13See  Martinez, 528 U.S. at 161-62, 120 S. Ct. at  691
(citing  John F. Decker, The Sixth Amendment  Right  to
Shoot  Oneself  in  the  Foot:  An  Assessment  of  the
Guarantee  of  Self-Representation Twenty  Years  after
Faretta, 6 Seton Hall Const. L. J. 483, 544-50 (1996)).

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