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State v. Cook (11/10/2011) ap-2334

State v. Cook (11/10/2011) ap-2334

                                               NOTICE
 
        The text of this opinion can be corrected before the opinion is published in the 
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        errors to the attention of the Clerk of the Appellate Courts: 

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               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

STATE OF ALASKA, 
                                                            Court of Appeals No. A-10300 
                                Appellant,                Trial Court No. 3PA-05-1339 Civ 

                        v. 
                                                                    O   P  I  N  I  O  N 
KIM MICHAEL COOK, 

                                Appellee.                 No. 2334    -   November 10, 2011 

                Appeal from the Superior Court, Third Judicial District, Palmer, 
                Eric Smith, Judge. 

                Appearances:     Michael Sean McLaughlin, Assistant Attorney 
                General,     Office    of   Special    Prosecutions     and   Appeals, 
                Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 
                for   the  Appellant.    Susan    Orlansky,    Feldman    Orlansky    & 
                Sanders, Anchorage, for the Appellee. 

                Before:     Coats,   Chief  Judge,   and  Mannheimer      and   Bolger, 
                Judges. 

                MANNHEIMER, Judge. 

                The defendant in this case, Kim Michael Cook, was indicted for murder. 

Cook wished to hire a private defense attorney to represent him in this criminal case, but 

he was unable to do so because most of his available assets were seized or frozen after 

a   money   judgement   was   entered   against   him   in   a   contemporaneous   civil   lawsuit. 

----------------------- Page 2-----------------------

Accordingly,   the   superior   court   appointed   the   Public   Defender   Agency   to   represent 

Cook. 

                 Cook went to trial and was convicted.            About a year and a half later, the 

Alaska Supreme Court overturned the judgement in Cook's civil case and remanded the 

civil case to the superior court for further proceedings.  (Cook ultimately settled the civil 

lawsuit.) 

                 After the civil judgement was overturned, Cook filed for post-conviction 

relief.  He contended that the superior court - by issuing the civil judgement that was 

later   overturned     -    had   abridged     his  rights  under    the  Sixth   Amendment.         More 

specifically, Cook argued that the Sixth Amendment guaranteed him the right to hire 

counsel   of   his   choice,   and   Cook   further   argued   that,   had   it   not   been   for   the   civil 

judgement and the consequent freezing of his assets, he would have had sufficient funds 

to hire the private defense attorney in his murder case. 

                 The post-conviction relief court agreed with Cook and set aside his murder 

conviction.     The State now appeals this decision. 

                 We   conclude   that   even   though   the   superior   court's   actions   in   the   civil 

lawsuit had the effect of preventing Cook from hiring a private attorney in the murder 

case, the superior court's actions did not violate Cook's Sixth Amendment right to hire 

the attorney of his choosing. 

                 True, the judgement in the civil case was overturned on appeal, and in that 

limited sense it was "improper" (in retrospect) for the superior court to have allowed the 

civil plaintiff to seize Cook's assets under the authority of that judgement.   But Cook's 

loss of access to these funds was simply the collateral consequence of rulings made by 

the superior court in the civil case.  The superior court's purpose in issuing these rulings 

was to adjudicate and enforce the rights of the parties in the civil action.               This was not 

                                                   - 2 -                                              2334
 

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a situation where a judge in the criminal case issued a ruling that directly prevented Cook 

from hiring the attorney of his choosing. 

                 Accordingly, we hold the seizure of Cook's assets pursuant to the civil 

judgement did not abridge Cook's right to counsel under the Sixth Amendment - and, 

thus, Cook is not entitled to post-conviction relief. 

         Underlying facts 

                 In May 1999, Kim Michael Cook shot and killed a police officer in Palmer. 

Shortly after the shooting, Cook was named as the defendant in two different lawsuits: 

a criminal prosecution for murder initiated by the State of Alaska (State v. Cook), and 

civil lawsuit for wrongful death initiated by the police officer's estate (Rowland v. Cook). 

                 Cook   failed   to   respond   to   the   civil   lawsuit,   and   in   late   June   1999   the 

superior   court   entered   default   judgement   against   Cook   for   slightly   over   7   million 
dollars. 1  Armed with this judgement, lawyers for the estate froze Cook's assets, which 

totaled some $300,000. 

                 In mid-July, Cook finally responded to the civil lawsuit, and he asked the 

superior court to set aside the default judgement, but the superior court concluded that 
Cook   had   failed   to   establish   sufficient   reason   to   set   aside   the   judgement. 2   Cook 

appealed the superior court's decision to the Alaska Supreme Court, and that civil appeal 
remained pending while Cook was prosecuted for murder. 3 

     1   See Cook v. Rowland, 49 P.3d 262, 263 (Alaska 2002). 

    2   Id. at 263-64. 

    3   Id. at 264. 

                                                   - 3 -                                                2334 

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                 Meanwhile, Cook had been trying to hire a defense attorney to represent 

him in the murder case.        In late June 1999, he engaged in preliminary discussions with 

a   prominent   Alaska   criminal   defense   attorney.         This   attorney   tentatively   agreed   to 

represent Cook, but only if Cook could give the attorney a retainer of $200,000.  Cook 

provided   the   attorney   with   authority   to   take   possession   of   Cook's   assets   -   but   the 

attorney quickly learned that most of Cook's assets were frozen as a result of the default 

judgement   issued   in   the   wrongful   death   lawsuit.      Cook   still   had   unfrozen   assets   of 

approximately   $92,000,   but   this   was   less   than   half   of   the   retainer   that   the   attorney 

demanded.       Because   Cook   was   unable   to   come   up   with   the   $200,000   retainer,   the 

attorney declined to represent him. 

                 In   mid-July,   Cook   attempted   to   regain   control   of   his   assets   by   filing   a 

motion in the civil lawsuit, asking the superior court to set aside the default judgement. 

But as we have explained, the superior court denied this motion.                    In other words, the 

court declined to set aside the judgement, and Cook did not regain control of his assets. 

Consequently, the superior court appointed the Public Defender Agency to represent 

Cook. 

                 Cook went to trial in October 2000, and he was convicted of first-degree 
murder. 4 

                 Approximately a year and a half later (in June 2002), the Alaska Supreme 

Court decided Cook's civil appeal (i.e., his appeal of the superior court's refusal to set 

aside the default judgement in the wrongful death action). The supreme court concluded 

that Cook had presented the superior court with a valid excuse for failing to file a timely 

response to the wrongful death lawsuit, and thus the superior court should have granted 

    4    This Court affirmed Cook's conviction on direct appeal:            Cook v. State, Alaska App. 

Memorandum Opinion No. 4847 (March 31, 2004), 2004 WL 719771. 

                                                   - 4 -                                                2334 

----------------------- Page 5-----------------------

Cook's request to set aside the default judgement. 5         However, the supreme court also 

concluded that, because Cook had been convicted of murder in the criminal case (while 

the civil appeal was pending), he could no longer dispute his responsibility for the police 
officer's wrongful death. 6      Therefore, even though Cook was entitled to re-open the 

question of damages (i.e., how much money he should be ordered to pay to the officer's 

estate), the supreme court concluded that there was no good reason to set aside the 
default judgement on the issue of Cook's liability for the officer's death. 7 

                (The    wrongful    death  lawsuit   never   went   to  trial  because  the  parties 

eventually     settled  the  damages    portion   of  the  lawsuit.    Cook    agreed   to  pay  the 

approximately       $300,000    that  the  estate  had   previously    seized   under   the  default 

judgement, and the estate agreed to forego any additional compensation.) 

        The superior court's decision to grant Cook post-conviction relief 

                In 2005, Cook filed a petition for post-conviction relief from his murder 

conviction. Among Cook's claims for relief, he argued that he was entitled to a new trial 

because the State unlawfully denied him the right to be represented by the attorney of his 

choice in the criminal case. 

                Superior    Court   Judge   Eric   Smith   agreed   with   Cook   that  the  default 

judgement in the civil case had prevented Cook from hiring the private attorney of his 

choice.  Judge Smith further agreed with Cook that, because the default judgement was 

later overturned by the supreme court, (1) the judgement was improper, (2) Cook should 

    5   Cook v. Rowland, 49 P.3d at 264-65. 

    6   Id. at 266. 

    7   Id. at 266-67. 

                                               - 5 -                                            2334 

----------------------- Page 6-----------------------

have had access to his money at the time he was attempting to hire the private attorney, 

and thus (3) Cook's rights under the Sixth Amendment were violated. 

                On this basis, Judge Smith set aside Cook's murder conviction, and the 

State now appeals the judge's decision. 

                Cook acknowledges that the superior court correctly issued the default 

judgement against him in the first place (because Cook failed to file a timely response 

to the wrongful death lawsuit).  Cook further acknowledges that he would have no valid 

ground to complain if the superior court had properly  declined to set aside that default 

judgement.   But as we have explained, the Alaska Supreme Court concluded in  Cook v. 

Rowland that Cook had had a good excuse for failing to respond on time to the wrongful 

death lawsuit, and thus the superior court should have granted Cook's request to set aside 

the default judgement. 

                Cook made his request to set aside the default judgement in the civil case 

in July 1999 - more than a year before he went to trial in the murder case.  Cook argues 

that   if   the   superior   court   had   ruled   correctly   on   his   request   to   set   aside   the   default 

judgement ( i.e., if the superior court had set aside the default judgement when Cook first 

asked for this relief), then Cook would have had access to his money during the days or 

weeks when he needed it to hire the private attorney to represent him in the murder case. 

Thus, Cook concludes, the superior court's action -  i.e., its failure to set aside the 

default judgement - wrongfully deprived Cook of his financial capacity to hire the 

counsel of his choice.   And because of this, Cook asserts that he is entitled to a new trial 

in his criminal case. 

                Cook concedes that if he were tried anew, he probably would be unable to 

hire private counsel, and he would end up being represented by the Public Defender 

Agency again.      Cook argues, however, that this is beside the point. 

                                                  - 6 -                                             2334
 

----------------------- Page 7-----------------------

                Cook relies on court decisions holding that when a criminal defendant is 

erroneously deprived of their counsel of choice, this is a "structural" error that requires 

reversal of the defendant's conviction even when the defendant can not show that the 
substitution of attorneys prejudiced their case in specific identifiable ways. 8               Based on 

these decisions, Cook argues that it is irrelevant whether he is again represented by the 

Public   Defender   Agency   at   a   second   trial,   and   that   it   is   also   irrelevant   whether   the 

evidence and the arguments presented at this second trial might turn out to precisely 

mirror the evidence and arguments presented at his first trial. 

        Why we conclude that Cook is not entitled to post-conviction relief 

                Under the Sixth Amendment to the United States Constitution, a criminal 

defendant is guaranteed the right to be represented by an attorney of their choosing if the 

attorney is legally entitled to practice in that jurisdiction, if the attorney is not otherwise 

disqualified, if the attorney is willing to represent the defendant, and if the defendant can 

afford to hire the attorney (or the attorney is willing to represent the defendant even 
though the defendant can not afford to pay). 9 

                In Cook's case, the defense attorney whom he contacted was unwilling to 

represent Cook unless Cook paid him a $200,000 retainer. Cook did not have the money 

to pay this retainer, so the attorney declined to represent him.  Seemingly, then, Cook's 

inability to secure the services of this attorney had no Sixth Amendment implications. 

    8   United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 150-51; 126 S.Ct. 2557, 2563 

65; 165 L.E.2d 409 (2006); McKinnon v. State, 526 P.2d 18, 23-24 (Alaska 1974). 

    9   Gonzalez-Lopez, 548 U.S. at 144, 126 S.Ct. at 2561; Caplin & Drysdale, Chartered 

v.  United States, 491 U.S. 617, 624-625; 109 S.Ct. 2646, 2652; 105 L.Ed.2d 528 (1989); 
Wheat v. United States, 486 U.S. 153, 159; 108 S.Ct. 1692, 1697; 100 L.Ed.2d 140 (1988). 

                                                  - 7 -                                               2334 

----------------------- Page 8-----------------------

                But Cook argues that he was wrongfully deprived of the funds he needed 

to pay the retainer.     Further, Cook argues that this wrongful deprivation was the result 

of state action:    to wit, the superior court's erroneous failure to grant his motion to set 

aside   the   default   judgement   in   the   wrongful   death   lawsuit. Cook   contends   that   the 

superior court, through its erroneous ruling, improperly allowed the police officer's 

estate to continue its hold on his assets, thus preventing Cook from paying the criminal 

defense attorney's retainer, and thus abridging his Sixth Amendment right to counsel of 

his choosing. 

                We note, preliminarily, that even if the superior court had granted Cook's 

motion to set aside the default judgement, this would not necessarily have meant that 

Cook would have had sufficient assets to engage, or to retain, the services of the private 

attorney.  Even if Cook had given the attorney a retainer of $200,000, the great majority 

of this money would still have been unearned.             The money would have gone into the 

attorney's trust account - where, potentially, it would have been subject to garnishment 
or seizure to pay Cook's debts, as long as it remained Cook's money. 10 

                We will assume, however, that if the default judgement in the wrongful 

death action had been set aside, there would have been no other major claims against 

Cook's assets during the pendency of the murder prosecution, other than the potential 

cost of defending the wrongful death lawsuit.   We will further assume that, if Cook had 

been faced with the choice of using his money to hire a defense attorney in the criminal 

case or, instead, using his money to hire a defense attorney in the civil lawsuit, Cook 

would have chosen to devote his money to the defense of the criminal case. 

                The question, then, is whether the superior court's mistaken failure to set 

aside    the  default   judgement   in   the  civil  lawsuit   should    be  viewed    as  a  wrongful 

    10  Brothers v. Kern, 64 Cal.Rptr.3d 239, 249-250 (Cal. App. 2007). 

                                                 - 8 -                                              2334 

----------------------- Page 9-----------------------

deprivation   of,   or   interference   with,   Cook's   right   to   hire   the   defense   counsel   of   his 

choosing in the criminal case.          We conclude that the superior court's action should not 

be deemed a violation of Cook's Sixth Amendment right to choose his attorney. 

                 Cook's case does not present an instance where a judge presiding over a 

criminal   case   made   a   ruling   directly   prohibiting   a   particular   defense   attorney   from 

entering   an   appearance   on   behalf   of   a   defendant,   or   prohibiting   an   attorney   from 

continuing to represent a defendant, or unreasonably refusing to accommodate a defense 

attorney's schedule when setting the trial date or other important deadlines.                      Instead, 

when the superior court initially issued the default judgement against Cook in the civil 

lawsuit, and when the superior court later denied Cook's motion to set aside that default 

judgement, the court's purpose was to adjudicate the competing interests of the parties 

in that civil lawsuit. 

                 It is true that when the superior court denied Cook's motion to set aside the 

default judgement, one collateral effect of the superior court's ruling was that Cook 

failed to regain control of his assets - thus leaving Cook without the financial ability 

to hire the private defense attorney that Cook wanted to represent him in the criminal 

case.   But this was not the point of the superior court's decision - nor (as far as the 

record reveals) was this even taken into consideration by the superior court when the 

court denied Cook's motion for relief from his default. 

                 Moreover, when Judge Smith granted post-conviction relief to Cook, he 

based his ruling, not on the fact that the superior court's ruling prevented Cook from 

regaining control over his assets, but rather on the fact that the superior court's ruling 

was   later   declared   to   be  wrong.    In   other   words,   Judge   Smith   concluded   that,   even 

though the superior court's refusal to set aside the default judgement meant that Cook 

was unable to regain control over most of his assets, and thus unable to hire the attorney 

                                                   - 9 -                                               2334
 

----------------------- Page 10-----------------------

he wished, there would have been no violation of Cook's Sixth Amendment rights if the 

superior court's ruling had been proper. 

                 This is why Judge Smith viewed the Alaska Supreme Court's decision in 

Cook   v.   Rowland  as   "new   evidence   of   a   material   fact"   for   purposes   of   AS   12.72. 
010(a)(4). 11    Judge Smith wrote: 

                 [T]he decision of the Alaska Supreme Court overturning the 
                 default judgment in [Cook's] civil case was a "material fact" 
                 requiring   a    new    trial   ...   [,]   in   that   the   [supreme   court's] 
                 decision      indicated    that   Mr.   Cook     had    wrongfully      been 
                 deprived of the funds he needed to hire counsel of his choice 
                 ... . 

                 In Cook's brief to this Court, he adopts this same position.                  He concedes 

that he would have no Sixth Amendment claim if the superior court had rightfully denied 

his motion to set aside the default judgement. According to both Judge Smith and Cook, 

the Sixth Amendment violation in Cook's case was not established until a year and a half 

after Cook's criminal trial - when, in Cook v. Rowland, the Alaska Supreme Court held 

that the superior court should have set aside the default judgement. 

                 Under   this   reasoning,   a   criminal   defendant's   Sixth   Amendment   rights 

would be violated by any judgement or order in  any proceeding if that judgement or 

order   deprived   the   defendant   of   the   funds   necessary   to   hire   a   private   attorney   in   a 

pending criminal case, and if the judgement or order was later overturned for any reason 

in a subsequent appeal, or in a motion for relief from the judgement. 

     11  This statute authorizes a person convicted of a crime to seek post-conviction relief on 

the ground that "there exists evidence of material facts, not previously presented and heard 
by the court, that requires vacation of the [person's] conviction or sentence in the interest of 
justice". 

                                                    -  10 -                                                2334 

----------------------- Page 11-----------------------

                Thus, under Cook's view of this issue, any judgement directing a person 

to pay damages for a breach of contract, or to pay back taxes and penalties, or even to 

pay a fine as punishment for an unrelated crime, would be deemed an abridgement of that 

person's Sixth Amendment right to counsel of choice in a pending criminal case if (1) 

the person was forced to satisfy the judgement (or, at least, forced to sequester funds to 

pay the judgement), and (2) the person's lack of funds prevented the person from hiring 

a private attorney in the criminal case, or at least the particular private attorney the 

person   would   otherwise   have   chosen,   and   then   (3)   the   money   judgement   was   later 

overturned   because   of   a   procedural   error,   or   a   mistaken   evidentiary   ruling,   or   an 

improper jury instruction. 

                In terms of guaranteeing a defendant's right to hire the counsel of their 

choosing in a criminal prosecution, the types of legal error described in the preceding 

paragraph,   and   the   consequent   reversal   of   the   money   judgements,   would   be   wholly 

fortuitous. 

                When a judge presiding over a civil case makes a ruling on a matter of 

procedure or evidence, or makes a ruling as to how the jury should be instructed, the 

judge is normally trying to adjudicate the matter before the court - and not thinking 

about   the   possibility   that,   if   a   money  judgement   is   ultimately   entered    against   the 

defendant at the end of the proceeding, this money judgement might hinder or prevent 

the defendant from hiring their counsel of choice in a separate criminal case.  Moreover, 

even if the judge presiding over the defendant's criminal case was aware of the civil case 

(which is by no means assured), the judge in the criminal case would have no way of 

influencing the other judge's rulings, nor any way of knowing whether the other judge's 

rulings would be attacked on appeal - and, if attacked, whether those rulings would be 

upheld or overturned on appeal. 

                                                 -  11 -                                            2334
 

----------------------- Page 12-----------------------

                 We conclude that it is illogical and unfair to overturn a criminal conviction 

under such circumstances, and we do not believe that the Sixth Amendment calls for 

such a result. 

                 The "structural error" approach taken by the United States Supreme Court 
in United States v. Gonzalez-Lopez 12 and by the Alaska Supreme Court in McKinnon v. 

State 13   is   premised   on   the   assumption   that   the   rule   of   structural   error   will   have   a 

deterrent effect - that it will cause judges to be extremely cautious whenever they are 

considering a ruling that will prevent a defendant from employing the attorney of their 

choosing   in   a   criminal   case.    But   this   assumption   makes   sense   only   when   (1)   the 

challenged ruling is made by a judge who is aware of the effect that the ruling will have 

on the defendant's ability to employ their chosen attorney, and only when (2) the effect 

of the ruling on the defendant's ability to employ the attorney is a factor that is legally 

relevant to the judge's decision. 

                 In   Cook's     case,   even   though    the   superior    court's    ruling   effectively 

prevented Cook from paying the attorney's retainer, this consequence was irrelevant to 

the court's decision - irrelevant to the question of whether Cook had demonstrated 

good cause for his failure to file a timely response to the wrongful death lawsuit. 

                 Accordingly, we hold that Judge Smith committed error when he granted 

post-conviction relief to Cook in this case. 

    12  548 U.S. 140, 148, 150-51; 126 S.Ct. 2557, 2563, 2564-65; 165 L.E.2d 409 (2006). 

    13  526 P.2d 18, 23-24 (Alaska 1974). 

                                                  -  12 -                                               2334 

----------------------- Page 13-----------------------

       Conclusion 

              The judgement rendered by the superior court in Cook's post-conviction 

relief litigation is REVERSED. 

                                            -  13 -                                      2334
 
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