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Shorthill v. State (7/10/2015) ap-2462

Shorthill v. State (7/10/2015) ap-2462

                                                                  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:  



                                           303 K Street, Anchorage, Alaska  99501
  

                                                         Fax:  (907) 264-0878
  

                                               E-mail:  corrections @ akcourts.us
  



                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                               



CARRY  EUGENE  SHORTHILL,  

                                                                                    Court of Appeals No. A-11078          

                                             Appellant,                          Trial Court No. 3AN-05-9029 CR                       



                                  v.  

                                                                                                                           

                                                                                               O  P  I  N  I  O  N  

                      

STATE OF ALASKA,  



                                                                                                                             

                                             Appellee.                                  No. 2462 - July 10, 2015  



                                                                                                              

                      Appeal  from  the  Superior  Court,  Third  Judicial  District,  

                                                                                                                         

                      Anchorage, Larry D. Card, Philip R. Volland, and Michael L.  

                                           

                      Wolverton, Judges.  



                                                                                                                     

                      Appearances: Hannah King (opening brief) and Sharon Barr  

                                                                                                             

                      (reply  brief),  Assistant  Public  Defenders,  and  Quinlan  

                                                                                                                             

                       Steiner,  Public  Defender,  Anchorage,  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  

                                                                        *  

                                                                            

                      Hanley, District Court Judge. 



                      Judge MANNHEIMER.  

                                  



      *    Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


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

                     In September 2005, Carry Eugene Shorthill led the Anchorage police on a  

                                                                                                                                    



strange, low-speed car chase on the Glenn Highway.  Based on this incident, Shorthill  

                                                         



was convicted of felony eluding and third-degree assault (for placing one of the pursuing  

                                                                                                                         



officers in fear of imminent serious physical injury).  

                                                                                    



                     In this appeal, Shorthill argues that the superior court committed error by  

                                                                                                                                  



refusing to allow him to represent himself at trial, after Shorthill had represented himself  

                                                                                                                           



during a year of pre-trial litigation.  Shorthill also argues that he was brought to trial  

                                                                                                                                



outside the time limits of Alaska's speedy trial rule.  And he contends that the evidence  

                                                                                                                        



presented at his trial was legally insufficient to support his convictions.  

                                                                                                               



                     In addition, Shorthill asserts that the superior court should have granted his  

                                                                                                                                  



motion to dismiss the indictment, and the court committed error during the trial by  

                                                                                                                                  



allowing the State to introduce evidence that Shorthill had a semi-automatic rifle in his  

                                                                                                                                 



vehicle during the pursuit.  

                                          



                     For the reasons explained in this opinion, we conclude that the superior  

                                                                                                                         



court properly found, based on Shorthill's efforts to represent himself during the year of  

                                                                                                                                   



pre-trial litigation, that it would be unjust and fundamentally unfair to allow Shorthill to  

                                                                                                                                   



represent himself at trial.  

                                         



                     We also conclude that Shorthill was brought to trial within the time limits  

                                                                                                                             



of the speedy trial rule, that the evidence at Shorthill's trial was sufficient to support his  

                                                                                                                                  



convictions, that the superior court properly denied Shorthill's motion to dismiss the  

                                                                                                                                 



indictment, and that the court properly admitted the evidence of the semi-automatic rifle  

                                                                                                                                



in Shorthill's vehicle.  

                                    



                     Accordingly, we affirm Shorthill's convictions.  

                                                                                                



                                                               - 2 -                                                          2462
  


----------------------- Page 3-----------------------

           Underlying facts  

                              



                    This case arose from the events that unfolded after Officer James Conley,  

                                                                                                                         



driving an unmarked police car, observed Shorthill traveling at a speed of 77 miles per  

                                                                                                                                



hour (i.e., traveling over the speed limit) on the Glenn Highway near Eklutna.  Shorthill  

                                                                                                                        



was headed south, toward Anchorage.  

                                                              



                    When Conley activated his police lights and signaled to Shorthill to pull  

                                                                                                                               



over, Shorthill slowed his vehicle and activated his right-turn signal, as if to pull off the  

                                                                                                                                



highway at the Eklutna exit.   But Shorthill did not pull over.   Instead, he continued  

                                                                                                                      



driving toward Anchorage at slower speeds, sometimes as little as 25 or 30 miles per  

                                                                                                                      



hour.  In the meantime, Shorthill's wife (who was riding in the passenger seat of the  

                                                                                                                                



truck) activated a video camera and started recording the episode.  

                                                                                                       



                    While he was driving, Shorthill used a mobile phone to call 911.  He told  

                                                                                                                               



the 911 operator that an unmarked police car was following him, and he directed the 911  

                                                                                                                               



operator to tell the officer to "back off" - that he would pull over as soon as he got to  

                                                                                                                                  



a "public place".  

                             



                    Officer Conley, for his part, calledfor backup. Two other officers -Roger  

                                                                                                                            



Nelson and Richard Dykstra - responded.  

                                                                     



                    Officer Nelson twice tried to force Shorthill to pull over.  At the Mirror  

                                                                                                                           



Lake exit, Nelson pulled in front of Shorthill and then applied his brakes, trying to force  

                                                                                                                             



Shorthill to pull over and take the exit, but Shorthill was able to drive around Nelson's  

                                                                                                                       



car.  

         



                    Nelson next tried to stop Shorthill by deploying spike strips (tire deflation  

                                                                                                                        



devices)  on the road, but Shorthill was able to drive around these devices without  

                                                                                                                         



puncturing his tires.  

                                  



                                                              - 3 -                                                          2462
  


----------------------- Page 4-----------------------

                                                                            After the police engaged in these unsuccessful attempts to force Shorthill                                                                                                                                                                                                                                                                                                    



to stop, Shorthill increased his speed to around 50 or 60 miles per hour.                                                                                                                                                                                                                                                                                                                                                   



                                                                            Along this stretch of the Glenn Highway, the road is two lanes in each                                                                                                                                                                                                                                                                                                                              



 direction, with a dirt median separating the traffic headed north and south. When Officer                                                                                                                                                                                                                                                                                                                                                                         



 Conley started to pull alongside Shorthill in the left lane, Shorthill swerved to the left and                                                                                                                                                                                                                                                                                                                                                                                         



began driving down the center of the road, straddling the two lanes and forcing Conley                                                                                                                                                                                                                                                                                                                                                                             



to stay behind him.                                                                                               When Shorthill moved further over to the left, into the left lane,                                                                                                                                                                                                                                                                                           



 Conley overtook him on the right, so that he could deploy more spike strips.                                                                                                                                                                                                                                                                                                                                                                       But there   



was an on-ramp that entered the highway at this location, and Shorthill veered his truck                                                                                                                                                                                                                                                                                                                                                                                       



 sharply to the right, into the extra lane that was temporarily created by the empty on-                                                                                                                                                                                                                                                                                                                                                                                                



ramp.    



                                                                            At this point, Conley and Shorthill were driving side-by-side. But the extra                                                                                                                                                                                                                                                                                                                        



lane created by the on-ramp soon ran out, and Shorthill guided his car back into the                                                                                                                                                                                                                                                                                                                                                                                                     



regular right-hand lane of the highway. This forced Conley to steer his vehicle to the left                                                                                                                                                                                                                                                                                                                                                                                               



to avoid an impact.                                                                                              For this maneuver, Shorthill was later charged with third-degree                                                                                                                                                                                                                                                    



 assault.    



                                                                             Shorthill eventually exited the Glenn Highway at the South Peters Creek   



 exit.   The officers followed Shorthill off the highway.                                                                                                                                                                                                                                                                Shorthill ran through two stop                                                                                                                            



 signs before he brought his truck to a stop in the parking lot of a gas station.                                                                                                                                                                                                                                                                                                                                                           As soon as                                          



 Shorthill stopped his truck, he and his wife began honking the horn and screaming for                                                                                                                                                                                                                                                                                                              



help from inside the truck.                                                                                                                               



                                                                            In order to get Shorthill out of the truck, the officers were forced to break                                                                                                                                                                                                                                                                                                                   



the truck's windows.                                                                                                     In the process of pulling Shorthill from the truck, Officer Dykstra                                                                                                                                                                                                                                                                   



                                                                                                                                                                                                                                                                                                                                                                                                                                                 1  

 saw   an   SKS   (i.e.,   a   semi-automatic   rifle)   lying   in   the   cab   of   the   truck.      Dykstra  



                    1                 The  initials  "SKS"  stand  for  Samozaryadniy   Karabin  sistemy   Simonova  (in  the  



                                                                                                                                                                                                                                                                                                                                                                                                                                     (continued...)  



                                                                                                                                                                                                                                         - 4 -                                                                                                                                                                                                                                     2462
  


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

 immediately   yelled,   "Rifle!"     In   response   to   this   warning,   Officer   Conley   pulled  



 Shorthill's wife from the truck as well, to prevent her from having access to the rifle.                                                                                                                                                                                                                                                                                                                                                            



                                                                    Based on this incident, Shorthill was indicted on one count of third-degree                                                                                                                                                                                                                                           



 assault and one count of first-degree (felony) eluding.                                                                                                                                                                                                                          (Shorthill was also charged with                                                                                                                



two misdemeanors:                                                                                     reckless driving and resisting arrest.)                                                                                                                                                              



                                  Shorthill's claim that he should have been allowed to represent himself at                                                                                                                                                                                                                                                                                                

                                  his trial   



                                                                    In  Faretta v. California                                                                                                     , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562                                                                                                                                                                                    



 (1975), the United States Supreme Court held that defendants in criminal cases have a                                                                                                                                                                                                                                       



 constitutional right to reject the assistance of counsel and to represent themselves.                                                                                                                                                                                                                                                                                                                                            But  



more recently, in                                                                       Indiana v. Edwards                                                                                      , 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345                                                                                                                                                                                      



 (2008), the Supreme Court concluded that trial courts have the authority to restrict this                                                                                                                                                                                                                                                                                                                                            



right of self-representation in certain instances - situations where defendants "are not                                                                                                                                                                                                                                                                                                                                               



 competent to conduct trial proceedings by themselves."                                                                                                                                                                                                                                     Id., 554 U.S. at 178, 128 S.Ct.                                                                                                   



 at 2388.                                   



                                                                    In Shorthill's case, he was initially represented by counsel - in fact, by a                                                                                                                                                                                                                                                                                                   



 series   of   attorneys  -   during   the   first   year   of   the   proceedings.     This   changed   in  



November 2006, when Shorthill announced that he no longer wished to be represented                                                                                                                                                                                                                                                                                                           



by the Public Defender Agency (his then-current attorney), and that he intended to                                                                                                                                                                                                                                                                                                                                                          



represent himself. At that time, the superior court found that Shorthill was competent to                                                                                                                                                                                                                                                                                                                                                      



represent himself, so the court released thePublicDefender Agency fromfurther service,                                                                                                                                                                                                                                                                                                                            



                  1                (...continued)  



 Cyrillic alphabet:  Ñàìîçàðÿäíûé êàðàáèí ñèñòåìû Ñèìîíîâà).  The literal translation is:  

                                                                                                                                                                                                                                                                                                                                   

 "Self-loading Carbine of the Simonov system".  

                 See http://en.wikipedia.org/wiki/SKS.  



                                                                                                                                                                                                                 - 5 -                                                                                                                                                                                                           2462
  


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

and Shorthill represented himself for the next year of the proceedings (up to the time  

                                                                                                                               



scheduled for his trial).  

                                       



                     During this year when Shorthill had no attorney, it gradually became clear  

                                                                                                                               



to the superior court judges handling his case - primarily, Judges Larry D. Card and  

                                                                                                                                



Michael L. Wolverton - that Shorthill faced major difficulties in representing himself.  

                                                                                                                                       



                     As we are about to describe in more detail, Shorthill kept trying to relitigate  

                                                                                                                         



issues that he had already litigated and lost.   When he was not doing that, Shorthill  

                                                                                                                        



focused  much  of  his  attention  on  issues  that  were  either  legally  insupportable  or  

                                                                                                                                  



irrelevant - issues such as whether the police filled out the correct forms following  

                                                                                                                       



 Shorthill's arrest; or whether the officer who applied for the search warrant in Shorthill's  

                                                                                                                      



case relied on hearsay from the officers who were personally involved in the pursuit and  

                                                                                                                                 



the traffic stop; or whether Judge Wolverton's oath of office was on file, and whether the  

                                                                                                                                 



judge was bonded.  

                                



                     And when Judge Card held a multi-day evidentiary hearing on Shorthill's  

                                                                                                                      



pre-trial motion to suppress evidence (based on the purported illegality of the traffic  

                                                                                                                            



stop),  Shorthill  floundered:                 he  was  unable  to  figure  out  the  rules  for  questioning  

                                                                                                                   



witnesses, he was unable to focus his questions on the legal issues that were relevant to  

                                                                                                                                   



his theory of suppression, and he was unable to refrain from phrasing his questions in the  

                                                                                                                                  



form of testimony (a practice that drew repeated objections from the prosecutor -  

                                                                                                                                  



objections that were sustained by the judge).  

                                                                       



                     When Shorthill's case was ultimately called for trial in December 2007,  

                                                                                                                             



 Shorthill informed the court that he had communicated with an Oklahoma lawyer about  

                                                                                                                              



assisting him at trial in an advisory capacity. But when the superior court telephoned this  

                                                                                                                                 



Oklahoma lawyer, the lawyer stated that he was not licensed in Alaska and could not  

                                                                                                                                 



represent  anyone  in  Alaska  -  although  he  fully  agreed  that  Shorthill  needed  the  

                                                                                                                                 



assistance of a lawyer.  

                                     



                                                               - 6 -                                                          2462
  


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

                                                               At this point, the superior court revoked Shorthill's permission to represent                                                                                                                                                                                                                                



himself, and the court appointed a lawyer to represent him. Shorthill now challenges this                                                                                                                                                                                                                                                                                                              



decision, arguing that the superior court violated his right of self-representation.                                                                                                                                                                                                                                                                                                         



                                                               To answer Shorthill's claim, we are about to present a lengthy description                                                                                                                                                                                                                         



of the litigation history of Shorthill's case.                                                                                                                                                             We have two purposes for presenting such                                                                                                                                              



a detailed factual description.                                                                                                               



                                                               First, of course, we wish to explain why we are upholding the superior                                                                                                                                                                                                                                          



court's decision in Shorthill's case.                                                                                                                                     



                                                               But   second   (and   just   as   importantly),   we   want   to   make   sure   that   our  



decision   in   this   case   is   not   interpreted   as   a   license   for  trial   judges   to   override   a  



defendant's right of self-representation merely because a defendant is unfamiliar with                                                                                                                                                                                                                                                                                                           



court procedures, or has some difficulty understanding the pertinent rules, or advances                                                                                                                                                                                                                                                                                    



unusual legal theories, or because it would generally be more convenient for the court                                                                                                                                                                                                                                                                                                       



if the defendant had a lawyer.                                                                                                                 



                                                               Here, the record demonstrates that Shorthill had persistent and pervasive                                                                                                                                        



difficulties with the judicial process - difficulties so acute that, in the words of the                                                                                                                                                                                                                                                                                                              



United States Supreme Court in                                                                                                                            Indiana v. Edwards                                                                                , he was "unable to carry out the                                                                                                          



                                                                                                                                                                                                                                                                                                                                                                     2  

basic tasks needed to present his own defense without the help of counsel."                                                                                                                                                                                                                                                                                               Shorthill  



                                                                                                                                                                                                                                                                                                                                                                                                            

was unable to organize his defense, he was unable to focus on meaningful motions or  



                                                                                                                                                                                                                                                                                                                                                                 

relevant points of law, and his questioning of witnesses and his arguments to the court  



                                                                                                                                                                                                                                                                                                                                                                                           

were largely ineffectual.   For this reason, we conclude that the superior court could  



                                                                                                                                                                                                                                                            

properly decide to require Shorthill to have a lawyer.  



                2               554 U.S. 164, 175-76; 128 S.Ct. 2379, 2386; 171 L.Ed.2d 345 (2008).  



                                                                                                                                                                                                 - 7 -                                                                                                                                                                                            2462
  


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

                     (a) A detailed examination of the litigation of Shorthill's case  

                                                                                                             



                    Introductory note :  We wish to clarify at the outset that, in the discussion  

                                                                                                                     



that follows, we are not following the judicial convention of saying "Shorthill argued"  

                                                                                                                         



or "Shorthill requested" when we really mean that his attorney made the argument or the  

                                                                                                                                 



request. Instead, whenever we refer to Shorthill's having done something, we mean that  

                                                                                                                                



he personally did it.  

                                



                     Shorthill's initial appearance in court took place on September 27, 2005.  

                                                                                                                                      



Shorthill was verbally combative with the judge, and he gave an account of the incident  

                                                                                                                         



that differed substantially from the State's view.  In particular, Shorthill told the district  

                                                                                                                          



court judge that he called 911 during the police pursuit "to ask for their assistance to  

                                                                                                                                  



protect me from this maniac that tried to run into my vehicle."  

                                                                                                  



                     Shorthill also voiced some legal theories that were unconventional:  he  

                                                                                                                                 



suggested that it was a violation of the double jeopardy clause for the court to require  

                                                                                                                          



both monetary bail and a third-party custodian, and he repeatedly challenged the legality  

                                                                                                                          



of the charging documents in his case because these documents were not sworn to by  

                                                                                                                  



someone with  first-hand knowledge of the incident.                                   Although these theories were  

                                                                                                                             



unorthodox, Shorthill articulated them in a clear, understandable manner.  

                                                                                                                   



                     Shorthill  also  told  the  judge  that  he  would  be  able  to  afford  his  own  

                                                                                                            



attorney, and that he did not want a court-appointed attorney.  

                                                                                                 



                    By early October, Shorthill had retained the services of an attorney.  But  

                                                                                                                               



several  weeks  later,  Judge  Michael  Wolverton  granted  this  attorney's  motion  to  

                                                                                                                                 



withdraw.  Judge Wolverton then questioned Shorthill regarding his potential desire to  

                                                                                                                                  



represent himself.  But Shorthill told the judge that he did not wish to represent himself  

                                                                                                                          



- that he was, in fact, unable to represent himself.  

                                                                                 



                                                              - 8 -                                                          2462
  


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

                     Judge Wolverton suggested that Shorthill might wish to apply for court- 

                                                                                                                            



appointed  counsel,  but  Shorthill  told  the  judge  that  he  would  not  accept  a  court- 

                                                                                                                           



appointed attorney unless the attorney was willing to "sign a contract" with him -  

                                                                                                                                 



apparently, a special contract that Shorthill had prepared.  Judge Wolverton informed  

                                                                                                                       



 Shorthill that a court-appointed attorney would not do that - to which Shorthill replied,  

                                                                                                                          



"Okay.  Then I don't want one."  

                                                     



                     Oneweeklater, on November 23, 2005, Shorthill returned to court to report  

                                                                                                                            



that he had not been able to find an attorney who was willing to represent him.  

                                                                                                                           



                     Judge Wolverton again offered Shorthill a court-appointed attorney, to  

                                                                                                                                 



which Shorthill replied, "If the court-appointed counsel will sign my contract, I have no  

                                                                                                                                 



problem." The judge again informed Shorthill that a court-appointed attorney would not  

                                                                                                                                



be required to sign his contract.  The judge then offered Shorthill more time to see if he  

                                                                                                                                 



could find a private attorney who was willing to sign his contract. In response, Shorthill  

                                                                                                                        



posed an unrelated question to the judge:  Was he entitled to trial by a jury of his peers?  

                                                                                                                           



Judge Wolverton said yes.  Shorthill then announced that he was not a citizen of the  

                                                                                                                                



United States, and that he was present before the court "only by force of arms".  The  

                                                                                                                               



judge told Shorthill that this made no difference:  he was still under the jurisdiction of  

                                             



the court.  

                  



                     After this discussion, Shorthill announced that he did not want any more  

                                                                                                  



time to try to find a private attorney.  Judge Wolverton replied that, if that was the case,  

                                                                                                                              



he  was  appointing  the  Public  Defender  Agency  to  represent  Shorthill.                                          Shorthill  

                                                                                                                       



responded, "Only upon signing of the contract, sir."  To which the judge replied, "No,  

                                                                                                                              



that's not going to happen.  The Public Defender Agency is appointed."  

                                                                                                                 



                     At the next two hearings in this case, both held in mid-December 2005,  

                                                                                                                            



 Shorthill  was  represented  by  an  assistant  public  defender.                              At  the  second  of  these  

                                                                                                                             



hearings, Shorthill again declared that he was under the superior court's jurisdiction only  

                                                                                                                               



                                                               - 9 -                                                         2462
  


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

"under threat of arms". Judge Wolverton declared that Shorthill was properly under the  

                                                                                                                                  



court's jurisdiction, and that he did not intend to discuss this matter any further.  

                                                                                                                               



                     In mid-January 2006, Judge Wolverton held another hearing in Shorthill's  

                                                                                                                       



case. At this hearing, Shorthill had a new attorney (still at public expense), and Shorthill  

                                                                                                                          



had apparently been granted co-counsel status.  When the judge called Shorthill's case  

                                                                                                                                



and  directed  Shorthill  and  his  attorney  to  come  forward  to  the  counsel  table,  the  

                                                                                                         



following colloquy ensued:  

                                             



                       

                               Shorthill:        Sir,  that  man  [apparently  referring  to  a  

                                                                                                                

                     police officer in the courtroom] is in uniform.  

                                                                                              



                               The Court:  I ...  

                                                         



                               Shorthill:  And he's ...  

                                                                   



                               The Court:  If you don't come ...  

                                                                                    



                               Shorthill:  ...  it's a show of force, and you're ...  

                                                                                                           



                               The Court:  ...  I'm going to have you ...  

                                                                                               



                               Shorthill:  ... rushing me to judgment.  

                                                                                           



                               The Court: I'll have you arrested if you don't come to  

                                                                                                                

                     counsel table.  Do you want that?  

                                                                  



                               Shorthill:  Under force and threat of arms, sir.  

                                                                                                        



                               The Court:  Yep.  You bet it is.  

                                                                                 



                               Shorthill:  I - that's right:  under threat of arms.  

                                                                                                             



                               The Court:  That's exactly what it is.  Have a seat.  

                                                                                                               



                                                              - 10 -                                                           2462
  


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

                     Theparties thenproceeded todiscuss Shorthill's requestfor discovery from  

                                                                                                                               



a third party: the Municipality of Anchorage. Shorthill had filed a pro se motion seeking  

                                                                                                                          



the  personnel  files  of  the  officers  involved  in  this  incident,  as  well  as  policy  and  

                                                                                                                                



procedures manuals and police tactical manuals. Attorneys for the Municipality and for  

                                                                                                                                  



the police officers appeared in court to oppose this request.  The judge and Shorthill's  



attorney  were  discussing  whether  the  Municipal  Attorney's  Office  had  standing  to  

                                                                                                                                  



oppose Shorthill's request.  Then Shorthill went off on a tangent:  

                                                                                         



                      

                               The Court: [referring to the discovery request] So I'm  

                                                                                                            

                     not going to decide anything this morning, because I'mgoing  

                                                                                                         

                     to give [Shorthill and his attorney] a chance to respond [to the  

                                                                                                             

                     Municipality's argument], as [they are] entitled to.                              But in  

                                                                                                              

                     writing.  

                                   



                               Shorthill:  Well, could I speak, sir?  

                                                                                



                               The Court:  Yeah.  Go ahead.  

                                                                               



                               Shorthill:  Okay.  This officer's presence ... is scaring  

                                                                                                      

                     the hell out of my wife, as she was assaulted sexually by an  

                                                  

                     officer.  [Shorthill was perhaps referring to the search of his  

                                                                                                             

                     wife's person for weapons at the scene of the traffic stop.]  

                                                                                                                  

                     And he should not be here, sir.  

                                                                       



                               The Court:  Okay.  

                                                             



                               Shorthill: He's using force on us, and that is wrong. ...  

                                                                                                                  

                     This is a ... neutral ground, sir.  

                                                                      



                               The Court: And I'm going to state, for the record, that  

                                                                                                            

                     [that] is simply, unequivocally untrue. ... He's not using any  

                                                                                                            

                     force. He has a right to wear his uniform in court. It happens  

                                                                                                     

                     every  single  day  in  this  courthouse,  and  it  will  in  this  

                                                                                                      

                     courtroom.  

                                        



                                                              - 11 -                                                          2462
  


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

          Shorthill:  Sir, ...
  

                                      



           The Court:  And that's all there is to it.
  

                                                                         



          Shorthill:  May I speak?
  

                                      



           The Court:  Briefly.
  

                                           



          Shorthill:  ...  The first level of force is [the] officer's
  

                                                                                 

uniform   and   presence,   sir.                   That's   their   use-of-force  

                                                                         

continuum that I've requested [in my discovery request], that  

                                                                                         

they're trying to get out of.  

                                       

  

           The Court:  Right.  

                                         



          Shorthill:  And that stands as they are trained to use  

                                                                                         

that, sir.  

               



           The Court:  I've made my [ruling], and I'm not going  

                                                                                     

to hear about this further.  The officers [can] come into this  

                                                                                         

courthouse with their uniforms on.   They're entitled to do  

                                                                                          

that, and that's all there is to it.  ...  There's no use of force in  

                                                                                           

this courtroom.  All right.  

                                          



          Shorthill's wife:  So you mean ... I have to put up ...  

                                                                                             



           The Court:  Ma'am, have a seat and ...  

                                                                        



          Shorthill's wife:  ... with the man ...  

                                                                   



           The Court:  Have a seat.  

                                                  



          Shorthill's wife:  ... with an officer ...  

                                                                      



           The Court:  Right now.  

                                                 



                                          - 12 -                                                           2462
  


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

                               Shorthill's wife:  ... that sexually assaulted me? 
 

                                                                                                 



                               The Court:  Have a seat.  Have a seat.  All right.
  

                                                                                                          



                     Later,   in   April   2006,   a  different   assistant   public   defender   began  

                                                                                                                          



representing Shorthill.   By mid-May, Judge Wolverton had conducted an  in camera  

                                                                                                                         



review of the municipal records and documents that Shorthill was requesting, and the  

                                                                                                                                



judge issued an order directing the Municipality to produce some (but not all) of these  

                                                                                                                             



requested materials.  

                                  



                     Two months later, at a mid-July hearing, Shorthill complained that Judge  

                                                                                                                            



Wolverton had not directed the Municipality to release all of the materials he requested.  

                                                                                                                                      



The judge explained to Shorthill that he had gone through all the materials in camera,  

                                                                                                                     



and that he had made his decision - a decision that gave Shorthill more than the  

                                                                                                                                



Municipality and the police wanted, but less than everything Shorthill wanted.  

                                                                                                                           



                     In response to the judge's explanation, Shorthill began to argue that the  

                                                                                                                                



court  had  already  issued  an  order  the  previous  December  that  required  complete  

                                                                                                                      



production of everything Shorthill wanted. The judge replied, "I've given you what I'm  

                                                                                                                                



going to give you.  That's all there is to it."  

                                                                     



                     (As we will explain in a later section of this opinion, Judge Wolverton had  

                                                                                                                                



in fact issued an order in December 2005 that purported to completely grant Shorthill's  

                                                                                                                     



discovery request.   But then the Municipality and the police officers objected to the  

                                                                                                                                



breadth of the discovery - prompting Judge Wolverton to conduct an in camera review  

                                                                                                                           



of the requested materials and, ultimately, to scale back the scope of the disclosure.  In  

                                                                                                                                  



the ensuing months, Shorthill repeatedly argued that Judge Wolverton's original order  

                                                                                                                             



continued to govern the discovery question - and both Judge Wolverton and Judge  

                                                                                                                            



Card repeatedly informed Shorthill that JudgeWolverton's later decision -the decision  

                                                                                                                         



                                                              - 13 -                                                         2462
  


----------------------- Page 14-----------------------

he  made  following  his  in  camera  review  of  the  materials  -  was  the  controlling  

                                                                                                                   



decision.)  

                 



                    Two months later, at a hearing in mid-September 2006, Shorthill objected  

                                                                                                                        



to any further participation by his assistant public defender. He told the court that he had  

                                                                                                                                



"fired [his attorney] in open court several times." Shorthill complained that his assistant  

                                                                                                                        



public  defender  had  "failed  to  produce  any  documentation"  and  had  "failed  to  

                                                                                                                                 



communicate with me", and had "filed some silly documents without any authority to do  

                                                                                                                                 



so - like practicing medicine without a license."  

                                                                              



                    Two weeks later, in early October, the Public Defender Agency asked the  

                                                                                                                                



superior court to hold an in camera representation hearing.  

                                                                                            



                    Ultimately, on November 13, 2006, Judge Larry Card allowed the Public  

                                                                                                                           



Defender Agency to withdraw and allowed Shorthill to begin representing himself -  

                                                                                                                                 



after the judge found that Shorthill was competent to do so, and that he had knowingly  

                                                                                                                     



waived his right to counsel.  

                                             



                    The next court proceedings of note in Shorthill's case occurred in August  

                                                                                                                          



2007, when Judge Card began a multi-day evidentiary hearing on Shorthill's motion to  

                                                                                                                                  



suppress all of the evidence stemming from the traffic stop (on the ground that the stop  

                                                                                                                               



was allegedly illegal), and to suppress the evidence obtained under an ensuing search  

                                                                                                                           



warrant (the video recording that Shorthill's wife made, using her camcorder, of the  

                                                                                                                                



police pursuit).  

                          



                    When  it  was  Shorthill's  turn  to  cross-examine  the  police  officer  who  

                                                                                                                              



testified  at this hearing,  he kept inserting  factual assertions and  comments into  his  

                                                                                                                                



questions, despite repeated warnings from the judge that this was improper. In addition,  

                                                                                                                        



Judge Card had to inform Shorthill that his arguments on his motion could not be made  

                                                                                                                             



while he was questioning the witness, but had to be made afterwards.  

                                                                                                             



                                                             - 14 -                                                          2462
  


----------------------- Page 15-----------------------

                     Shorthill spent a significant portion of the hearing asking questions based  

                                                                                                                            



on the theory that it was unlawful for the police to seize the rifle from his car at the time  

                                                                                                                              



of the traffic stop because (1) the rifle was not evidence of the traffic offense which  

                                                                                                                           



triggered the police pursuit (i.e., speeding), and because (2) Shorthill was never charged  

                                                                                                                         



with a weapons offense.  He also asked several questions based on the mistaken theory  

                                                                                                                           



that an application for a search warrant must be based entirely on affidavits submitted by  

                                                                                                                                 



people who have personal knowledge of the facts - and that, therefore, the search  

                                                                                                                           



warrant in his case was unlawful, since the search warrant application contained hearsay  

                                                                                                                         



assertions made by the other officers who participated in the pursuit and traffic stop.  

                                                                                                                                    



                     In  addition,  Shorthill  again  asserted  that  he  had  not  received  all  the  

                                                                                                                                



discovery he was entitled to.  He argued that Judge Wolverton had issued a court order  

                                                                                                                             



in December 2005 that entitled him to everything he asked for, and not just the materials  

                                                                                                                       



that the judge had released following his in camera review.  Judge Card told Shorthill  

                                                                                                        



that the discovery ruling had been made, and that Shorthill was not entitled to any  

                                                                                                                               



additional materials.  

                                  



                     Toward  the  end  of  this  hearing,  the  prosecutor  urged  Judge  Card  to  

                                                                                                                                 



reconsider his ruling that Shorthill was competent to represent himself.   The judge  

                                                                                                                            



conceded that Shorthill was having trouble following the rules of procedure, but the  

                                                                                                                                



judge concluded that things had not reached the point where it was necessary to revoke  

                                                                                                                           



 Shorthill's permission to represent himself.  

                                                                     



                     Following this discussion, Shorthill again asserted that he had not received  

                                                                                                                        



all the discovery he was entitled to, and Judge Card again declared that the issue of  

                                                                                                                                  



discovery was concluded.  

                                            



                     The  suppression  hearing  was  then  continued  until  September  2007.  

                                                                                                                                      



                     At the resumption ofthesuppression hearing on September 4th, an attorney  

                                                                                                                         



for the Municipality of Anchorage appeared and objected that Shorthill had served a  

                                                                                                                                   



                                                              - 15 -                                                         2462
  


----------------------- Page 16-----------------------

subpoena duces tecum on a police officer - Sgt. Pablo Paiz - for the apparent purpose  

                                                                                                                         



of circumventing Judge Wolverton's discovery ruling.   This subpoena purported to  

                                                                                                                                 



require the officer to produce some of the materials that Judge Wolverton had declined  

                                                                                                                        



to disclose to Shorthill following his in camera review.  

                                                                                       



                    When Judge Card declared that he would not allow this, Shorthill did not  

                                                                                                                                



argue the point. Instead, Shorthill told the judge that he still wished to call Sgt. Paiz, and  

                                                                                                                                



that he would have Paiz testify about other matters.  

                                                                   



                    A little later in the hearing, when another officer took the stand, Shorthill  

                                                                                                                        



disagreed with the officer's answers, and Shorthill kept making assertions about his own  

                                                                                                                               



recollection of events.  Judge Card warned Shorthill not to do this.  

                                                                                                         



                     Still later, when Paiz took the stand, Shorthill repeatedly asserted that Paiz  

                                                                                                                               



had been constructively "on the scene" and "present" when Shorthill was arrested -  

                                                                                                                                 



based on the theory that the sergeant was the on-duty supervisor that day, and that he was  

                                                                                                                               



talking to the officers in the field by radio.  Thus, when Paiz testified that he arrived on  

                                                                                                                                 



the scene after  the incident was over,  and  after  Shorthill was in  custody,  Shorthill  

                                                                                                                       



objected that "the [officer's] answer is not true".  

                                                                             



                    Later during the suppression hearing, Shorthill told Judge Card that he  

                                                                                                                                 



wanted to challenge the police officers' use of spike strips to try to stop his car, on the  

                                                                                                                                



theory that this was an unjustified  use of "deadly force".   The judge sustained the  

                                                                                                                                



prosecutor's objection to this line of questioning.  

                                                                              



                    (See State v. Sundberg, 611 P.2d 44, 51-52 (Alaska 1980), which holds that  

                                                                                                                                



police officers' use of excessive force in making an arrest is not a ground for suppressing  

                                                                                                                   



the evidence resulting from that arrest.)  

                                                              



                    A few moments later, the prosecutor objected to another of Shorthill's  

                                                                                                                    



questions, on the ground of lack of relevance, and Judge Card sustained the prosecutor's  

                                                                                                                  



                                                             - 16 -                                                          2462
  


----------------------- Page 17-----------------------

objection.  In response, Shorthill declared, "I object", and he began to assert that the  

                                                                                                               



contemplated answer was "very relevant".  

                                                                    



                     Judge Card explained to Shorthill that he was entitled to object to the  

                                                                                                                                



prosecutor's questions, or to the witness's answers, but that he could not object to the  

                                                                                                                  



judge's rulings after the ruling was made.  

                                                        



                     A few minutes later, Shorthill returned to questions about the officers' use  

                                                                                                                                



of the spike strips - which he now categorized as "excessive force".  At this point,  

                                                                                                                            



 Shorthill's wife interrupted her husband, asking himwhat relevance this had to the police  

                                                                                                                            



seizure of their property during the traffic stop.  Shorthill apparently had no answer for  

                                                                                                                                 



this, because he then said, "Oh.  I have no further questions."  

                                                                                                 



                     At this point, Shorthill drew Judge Card's attention to Alaska Criminal  

                                                                                                                       



Rule 53 - the rule which declares that the Rules of Criminal Procedure "are designed  

                                                                                                                       



to  facilitate  business  and  advance  justice",  and  that  the  rules  "may  be  relaxed  or  

                                                                                                                                 



dispensed  with  ...  in  any  case  where  it  shall  be  manifest  to  the  court  that  a  strict  

                                                                                                                             



adherence to them will work injustice."  The following colloquy then ensued between  

                                                                       



 Shorthill and Judge Card:  

                                



                       

                               Shorthill:   I want to show that [this witness is] not  

                                                                                                           

                     telling the truth, and I don't have the mechanism to do [that]  

                                                                                                         

                     right now, because you've denied me the means.   I'm not  

                                                                                                            

                     sure what the cause is.   But I'm going to try and comport  

                                                                                                    

                     myself the best I can to fit the rules.  

                                                                             



                               The Court:  All right, but we ...  

                                                                            



                               Shorthill: Now, my understanding was, this is an area  

                                                                                                           

                     to present evidence, and to distinguish whether things can be  

                                                                                                             

                     used or not, and a basis on why.  The format is that this was  

                                                                                                           

                     a malicious prosecution ... from an incident that happened ...  

                                                                                                              



                                                              - 17 -                                                         2462
  


----------------------- Page 18-----------------------

At this point, Judge Card interrupted Shorthill, excused the witness, and told Shorthill  

                                                                                             



that he would not be allowed to lecture the court about its duties.  The judge then added:  

                                                                                                                                      



                      

                               The  Court:          I'm  trying  my  best  to  have  a  lawful  

                                                                                                      

                    proceeding and a fair proceeding.   But you're out of your  

                                                                                                         

                    depth. I've told you over and over again, but you continue to  

                                                                                                              

                     ... insist[] on representing yourself.  So you'll have to suffer  

                                                                                                        

                    the consequences of that.  I can't be your lawyer.  

                                                                                                  



                               Is the next [witness] someone you want to [view] the  

                                                               

                    video tape, Mr. Shorthill?  

                                              



                              Shorthill:  Well, I have to confess, at this point I'm so  

                                                                                                             

                    confused - that the [video] tape is relevant, but it's not  

                                                                                                           

                    relevant.  It's evidence, but it's not evidence.   It's used to  

                                                                                                             

                    refresh, but it's not.  I'll have to get the recording [of] this  

                                                                                                           

                    proceeding and have it transcribed, so I can [study] it and  

                                                                                                           

                    figure it out, because ...  

                                                          



                               The  Court:           Talk  to  Mrs.  Shorthill.               I  think  she  

                                                                                                           

                    understands  what's  going  on,  and  I  wish  she  were  your  

                                                                                                         

                    lawyer.  

                                  



                    A little later, Judge Card adjourned the suppression hearing.  The hearing  

                                                                                                                          



resumed on September 18, 2007.  

                                                     



                    At the beginning of the proceedings on September 18th, when Judge Card  

                                                                                                                              



asked if the parties were ready to proceed, Shorthill declared that he was not ready.  

                                                                                                                                      



Shorthill then voiced a barely comprehensible accusation that Judge Card had prevented  

                                                                                                                      



him from presenting his case and making his record.  

                                                                                   



                    In  reply,  the  judge  explained  that  the  current  hearing  dealt  only  with  

                                                                                                                              



Shorthill's suppression motion, and that this was not the time for Shorthill to raise all of  

                                                                                                                                  



his  other  concerns  about  the  case.                   Shorthill  responded  with  statements  about  the  

                                                                                                                                



                                                             - 18 -                                                          2462
  


----------------------- Page 19-----------------------

appearance of injustice, and how there was a court rule that addressed that issue.  Judge  

                                                                                                                            



Card directed Shorthill to sit down and told him that he was required to confine his  

                                                                                                                                



remarks to the issue in front of the court (i.e., the suppression motion).  

                                                                                                               



                    A few minutes later, when Shorthill was examining a police witness, he  

                                                                                                                                 



asked the officer a series of questions suggesting that the officer did not follow standard  

                                                                                                                        



departmental procedures when he pursued Shorthill's vehicle, and that suspects are not  

                                                                                                                                



required to cooperate with the police, and that the use of restraint must be reasonable.  

                                                                                                                                      



Judge Card then explained to Shorthill that, while these issues might be relevant to  

                                                                                                                                  



Shorthill's contemplated civil lawsuit against the police, they were not relevant to the  

                                                                                                                                



legality of the traffic stop.  

                                           



                    When questioning resumed, Shorthill asked the officer if it was true that he  

                                                                                                                                  



(Shorthill) and his wife had a right to drive to a safe place if they were in fear for their  

                                                                                                                              



lives.  The officer answered no - that a person is not allowed to "drive for six or seven  

                                                                                                                            



miles and - and elude the police."  When Shorthill retorted, "Where is that written  

                                                                                                                          



down, sir?", the prosecutor objected, and Judge Card interrupted the questioning.  

                                                                                                                               



                    A little later, Shorthill asked the officer a series of questions suggesting that  

                                                                                                                                



the police conducted the pat-down search of his wife in an improper way, and that  

                                                                                                                               



therefore her Fourth Amendment rights were violated.  The prosecutor objected that this  

                                                                                                                                



was irrelevant to the suppression motion, since no evidence was found during this pat- 

                                                                                                                               



down.   Judge Card then pointed out that, even if Shorthill's wife's rights had been  

                                                                                                                      



violated, she was not the defendant in the case.  

                                                                           



                    A few minutes later, Shorthill asked this witness if he had brought the  

                                                                                                                                



materials required by the subpoena duces tecum.  Apparently, this was another attempt  

                                                                                                                          



by Shorthill to circumvent Judge Wolverton's earlier discovery ruling - by having the  

                                                                                                                                



officer bring materials that the judge had refused to disclose following the court's in  

                                                                                                                                  



                                                             - 19 -                                                          2462
  


----------------------- Page 20-----------------------

camera review. Once Shorthill's tactic was clarified, Judge Card declared that he would  

                                                                                                                            



not allow this.  

                         



                    When Shorthill resumed his examination of the officer, Shorthill used  

                                                                                                                             



questions as a method for testifying about his version of events.  He asked a series of  

                                                                                                                                  



questions pertaining to the police seizure of the video camera that his wife had used to  

                                                                                                                                  



record the police pursuit, and then he asked, "What crime did the camera commit?"  

                                                                                                                                  



                     Shorthill also asked, or said that he wished to ask, many questions about  

                                                                                                                            



other topics that had little or no apparent relevance to the suppression motion in front of  

                                                                                                                                  



the court.  For instance, Shorthill asked the officer if he had filed a "use of force" report  

                                                                                                                            



after the pursuit and traffic stop - apparently on the theory that the pursuit constituted  

                                                                                                                    



the use of deadly force.   Shorthill also wanted to ask questions suggesting that the  

                                                                                                                                



officers violated departmental policy by engaging in "idle chit-chat" while they were  

                                                                                                                             



speaking to each other on the emergency radio channel during their lengthy pursuit of  

                                                                                                  



Shorthill's vehicle. And after one officer testified that his in-car camera wasn't working  

                                                                                                                        



on the day in question, and had been sent for repairs, Shorthill wanted to ask if it was  

                                                                                                                               



proper  for  the officer  to  be driving  this patrol car  when  its equipment was not all  

                                                                                                                                



functioning properly.  

                                    



                    Later on, when Judge Card again reminded Shorthill that the only issue  

                                                                                                                             



before the court was the existence of probable cause for the traffic stop and the seizure  

                                                                                                                          



of evidence, Shorthill responded by asking the police witness, "What was the probable  

                                                                                                                        



cause  to  violate  the  passenger's  [i.e.,  his  wife's]  Fourth,  Fifth,  and  Fourteenth  ...  

                                                                                                                                 



Amendment protections in this particular incident?"  

                                                                                  



                    At  the  conclusion  of  the  hearing,  Shorthill  delivered  his  suppression  

                                                                                                                  



argument  to  the  court.              Shorthill's  argument  was  rambling  and  unfocused,  and  he  

                                                                                                                                 



repeatedly tried to testify during the course of his remarks.   In addition, Shorthill's  

                                                                                                     



argument was full of legal non sequiturs and assertions of fact outside the evidence.  

                                                                                                                                   



                                                             - 20 -                                                          2462
  


----------------------- Page 21-----------------------

                     Twodayslater,JudgeCarddeniedShorthill'ssuppression motion in an oral  

                                                                                                                               



decision announced on the record.  

                                                        



                     After Shorthill's suppression motion was denied, his case was called for  

                                                                                                                      



trial  - initially  in  September  2007,  but  later  rescheduled  for  early  October  2007.  

                                                                                                                                      



 Superior Court Judge Philip R. Volland presided over the October trial calls.  

                                                                                                                        



                     The prosecutor asked Judge Volland to delay the start of Shorthill's trial  

                                                                                                                               



until October 15th, because a key witness (one of the police officers) was not available  

                                                                                                                       



until then. In response to the prosecutor's request, Shorthill declared that there were still  

                                                                                                                                



"a number of outstanding motions".  

                                                          



                     When Judge Volland told Shorthill that there were no undecided motions,  

                                                                                                                        



 Shorthill responded that there was "a two-year-old outstanding motion" - and that,  

                                                                                                                              



because this motion had remained undecided for two years, the time for bringing him to  

                                                                                                                                  



trial under Criminal Rule 45 had expired.  Shorthill then declared that "[he was] not  

                                                                                                                                



going to go forward until that issue [i.e., the Rule 45 issue] [was] dealt with".  

                                                                                                                         



                     JudgeVollandresponded thatShorthill'sobjectionwas"noted" -and then  

                                                                                                                               



the judge declared that Shorthill's trial would begin on October 15th.  In response to  

                                                                                                                                  



Judge Volland's ruling, Shorthill continued to object that Rule 45 had run, based on his  

                                                                                                                                 



theory that there were outstanding motions that had remained undecided for much longer  

                                                                                                                           



than 30 days.  Judge Volland told Shorthill that his objection was preserved - but the  

                                                                                                                                



judge added, "There are no outstanding motions, [and] fromthe court's calculation, Rule  

                                                                                                                              



45 has not expired, [and] it does not expire until October 22nd."  

                                                                                                     



                     Shorthill then presented an alternative objection: he told the judge that his  

                                                                                                                                 



case could not go forward because no omnibus hearing had been scheduled in his case.  

                                                                                                                                      



 Shorthill told Judge Volland that the law required the superior court to hold an omnibus  

                                                                                                                        



hearing in all criminal cases.  Shorthill then declared, "That's a requirement that's been  

                                                                                                                              



                                                              - 21 -                                                         2462
  


----------------------- Page 22-----------------------

forgotten about and neglected since the beginning of this [case]". Shorthill claimed that  

                                                                                                                                   



an omnibus hearing "has to be scheduled or [my] case can't go forward."  

                                                                                                                      



                     Judge  Volland  responded  to  Shorthill's  argument  by  simply  saying,  

                                                                                                                             



"Mr. Shorthill, the case is going forward on October 15th to trial."   When Shorthill  

                                                                                                                           



continued to object, the judge told him, "Your objection is preserved, ... but I'm trying  

                                                                                                                               



to tell you [to] be ready for trial."  This led to the following colloquy:  

                                                                                                               



                       

                               Shorthill:         What  [does]  my  objection  being  "pre- 

                                                                                                           

                     served" entail?  

                                   



                                The Court:  It means it's preserved for the purposes of  

                                                                                                                 

                     any appellate review.  

                                            



                               Shorthill: In other words, ... I [can] take [this issue] to  

                                                                                                                 

                     appellate review now, so that we can get this thing resolved  

                                                                                                       

                     ...  

                          



                                The Court:  It's not ...  

                                                                    



                               Shorthill:  Because that's a ruling ...  

                                                                                          



                                The Court:  It's not ...  

                                                                    



                               Shorthill:  ... of law that's ...  

                                                                              



                                The Court:  It's not - You can try ...  

                                                                                            



                               Shorthill:  ... void.  

                                                              



                                The Court: ... a petition if you want, Mr. Shorthill, but  

                                                                                                               

                     it's  really  not  ripe  for  appellate  review  unless  you're  

                                                                                            

                     convicted, I can tell you that.  

                                                                      



                               Shorthill:          Well,  since  the  motion  for  a  Rule  45  

                                                                                                               

                     [dismissal] has been done in error and/or through neglect  

                                                                                          



                                                               - 22 -                                                            2462
  


----------------------- Page 23-----------------------

                     and/or  through  maliciousness,  it  is  ready  for  review  by  

                                                                                                             

                     appellate ...  

                                        



                               The Court:  No.  

                                                          



                               Shorthill:  ... because the fact [is] it [has] run, and the  

                                                                                                              

                     fact that the Rule 45 [time] having been run means that you  

                                   

                     don't have any authority any longer, and [my] case is closed.  

                                                                                                        



                               The Court:  You're welcome to take a petition to the  

                                                                                                             

                     Court of Appeals if you wish, Mr. Shorthill, but that doesn't  

                                                                                                       

                     do anything to the scheduling [of your trial].  You're set for  

                                                                                                              

                     trial [on] October 15th.  

                                                            

                               .  .  .  

                                      



                               Shorthill:  Well, as far as the players and the actors,  

                                                                                                        

                     I'm very unimpressed, and I object to the whole process.  

                                                                                                               



                     Shorthill did indeed petition this Court to review Judge Volland's decision  

                                                                                                                          



- a petition that this Court denied on October 23rd.  

                                                                                    



                     Judge  Wolverton  held  a  pre-trial  conference  in  Shorthill's  case  the  

                                                                                                                                 



following day (October 24th).  Shorthill appeared at this conference telephonically.  

                                                                                                                                   



                     At this pre-trial conference, Judge Wolverton announced that "it appears  

                                                                                              



that we're on track to try [this] case", and the prosecutor told the judge that the State was  

                                                                                                                                 



ready for trial.  Judge Wolverton then addressed Shorthill:  

                                                                                             



                       

                               The Court:  Mr. Shorthill, you'll be ready?  

                                                                                        



                               Shorthill:  Your Honor, I'm here to inform you that  

                                                                                                            

                     [the  prosecutor]  lied  to  the  appellate  court  in  his  brief.  

                                                                                                                   

                     Excuse me, sir ...  

                                                 



                               The Court:  No, no, no.  

                                                                     



                               Shorthill:  Don't interr ...  

                                                                        



                                                              - 23 -                                                           2462
  


----------------------- Page 24-----------------------

                               The Court:  I'm asking the questions.
  

                                                                                          



                               Shorthill:  Don't stop me ...
  

                                                                           



                               The Court:  ... Are you ready for trial [on] November
  

                                                                                                 

                     26th?  



                               Shorthill:  No, sir.  

                                                             



                               The Court:  All right.  Then what is your request?  

                                                                                               



                               Shorthill:  I would like this Court to address the two- 

                                                                                                          

                    year-old motion that you failed to address, and you pushed  

                                                                                                      

                     off on other people.  And I'd like you to do it, and finish this  

                                                                                                            

                     case.  

                                



                               The Court:  Mr. Shorthill, all motions have been ruled  

                                                                                                          

                     on.  

                           



                               Shorthill: No, sir, they have not. I have an example ...  

                                                                                                               



                               The Court:  Mr. Shorthill, ...  

                                                                            



                               Shorthill:  ... (indiscernible) not been ready ...  

                                                                                                       



                               The Court:  Don't - All right, we'll hang up on Mr.  

                                                                                                            

                     Shorthill [now].  

                                                



                     Shorthill's trial ended up being delayed, and Judge Volland held a trial call  

                                                                                                                                 



on November 30, 2007. When the judge asked the parties how long they anticipated the  

                                                                                                                                 



trial to be, Shorthill again returned to his theory that Rule 45 had expired because the  

                                                                                                                                 



court had allowed outstanding motions to remain undecided for more than 30 days:  

                                                                                                                                  



                      



                                                              - 24 -                                                          2462
  


----------------------- Page 25-----------------------

                               Shorthill:  Rule 45 is way past due.  It was told to me  

                                                                                                             

                     via  the  secretary  that  [the  time  expired]  on  the  22nd  of  

                                                                                                             

                     October.  On the 20th of September, and again on the 4th of  

                                                                                                              

                     October.        I  filed  a  -  an  appellate  review  on  some  bad  

                                                                                                           

                     decisions,  and I  did  that on the 10th  of October.                            Okay?  

                                                                                                       

                     [And] they ruled on it on the 23rd of October, and it says now  

                                                                                                           

                     that the Rule 45 [deadline] is 15 December. There's no basis  

                                                                                                          

                     for that, sir.  And the 13 to 15 days that my appellate review  

                                                                                                       

                     was in certainly doesn't constitute to the 15th of December  

                                                                                                  

                     from the 22nd of October, sir.   [Accordingly,] Rule 45 is  

                                                                                                              

                     done waived and gone ... , and I'm done, respectfully, sir.  

                                                                                                               



Judge Volland told Shorthill that he was not dismissing the case, but that Shorthill's Rule  

                                                                                                                               



45 objection was preserved.  

                                              



                     In response to the judge's ruling, Shorthill argued at length that there were,  

                                                                                                                              



indeed, outstanding (i.e., undecided) motions in his case, and that the superior court  

                                                                                                                              



lacked the authority to hold the trial as long as there were undecided motions.  Shorthill  

                                                                                                                         



also again argued that it was improper to hold the trial because no omnibus hearing had  

                                                                                                                                 



been scheduled.  And he again argued that, regardless of whether there were undecided  

                                                                                                                      



motions, Rule 45 had expired on October 22nd.  Judge Volland did not alter his ruling.  

                                                                                                                                       



                     The superior court finally called Shorthill's case for trial in front of Judge  

                                                                                                                             



Wolverton on December 3, 2007.  

                                                       



                     At the beginning of the proceedings on December 3rd, just before jury  

                                                                                                                               



selection was to begin, Judge Wolverton formally announced that this was the time set  

                                                                                                                                  



for trial, and he asked the parties if they were ready to proceed. Shorthill responded that  

                                                                                                                                



he had "a number of things that need to be dealt with prior to trial".  Judge Wolverton  

                                                                                            



told him, "All right.  Go ahead."  - which led to the following colloquy:  

                                                                                                   



                      

                               Shorthill: We have an issue of outstanding discovery.  

                                                                                                  

                      



                                                              - 25 -                                                          2462
  


----------------------- Page 26-----------------------

                               The  Court:         Judge  Card  and  I  have  reviewed  this.  

                                                                                                                  

                    There is no outstanding discovery.  The rulings have been  

                                                                                                         

                    made.  ...  What have you not received?  

                                                                   



                              Shorthill:   On the 15th of December of 2005, we had  

                                                                                                           

                    a very long time, and we chatted back and forth, and I had a  

                                                                                                               

                    list  of  24  items  that  you  said,  it's  my  list,  I  could  have  

                                                                                                         

                    anything I wanted on that list.  You told the public defender  

                                                                                                   

                    that you forced on me against my will ...  

                                                                                



                               The Court:  Mr. Shorthill, we're not going to do this.  

                                                                                                                  

                    I've made my rulings, and so has Judge Card. If you feel you  

                                                                                                           

                    need to appeal something, you may appeal it.   We're not  

                                                                                                           

                    going to go through this any more.  

                                                                            



Shorthill then raised his Rule 45 claim again:  

                                                                       



                      

                              Shorthill:         On  the  -  now,  let's  see  here  -  on  

                                                                                                            

                    September 20th, I was emailed a document that said that [the]  

                                                                                                          

                    Rule 45 [deadline] was the ... 22nd of October.  Okay.  On  

                                                                                                            

                    the 29th of November, it switched to the 15th of December  

                                                                                                 

                    for Rule 45.  I would like an explanation of that, because I  

                                                                                                               

                    only interrupted 13 days on my [petition for review], and  

                                                                                                           

                    that's all that's accountable to me, so the 22nd ...  

                                                                                             



                               The Court:  I'll have my ...  

                                                                      



                              Shorthill:  ... plus 13 [days] ...  

                                                                          



                               The Court: ... secretary run a calculation, but you have  

                                                                                                          

                    accepted  a  trial  [date]  within  Rule  45.                      We're  ready  to  

                                                                                                             

                    proceed today.  

                                             



                              Shorthill:  No, sir, I haven't.  

                                                              



                               The Court: Now, Mr. Shorthill, I've made a ruling.  

                                                                                                                  

                    You may appeal it if you wish.  

                                                                     



                                                             - 26 -                                                          2462
  


----------------------- Page 27-----------------------

                               Shorthill:  Okay.  So what is your ruling then?  

                                                                                               

                      

                               The  Court:  It's  that  [the]  Rule  45  [deadline]  is  

                                                                                                              

                    December 15th.
  

                                      

                               .  .  .
  

                                      



                               Shorthill:  I need [an] explanation, sir.  

                                                                                      



                               The Court:  No, actually, I'm not going to explain it.  

                                                                                                                   

                     I've got 50 [prospective jurors] waiting downstairs. We're  

                                                                                                        

                     going to trial.  This case will not be dismissed [under] Rule  

                                                                                                           

                    45.  

                           



Shorthill then launched into a series of further objections to holding the trial:  

                                                                                                                          



                      

                               Shorthill:  So [that] I have this right in my mind, I'm  

                                                                                             

                    kind of going to talk out loud, so that you can correct me if  

                                                                                                                

                     I'm wrong.  What we did on the 15th of December of 2005,  

                                                                                                         

                     and how it turned out, is the ...  

                                                                  



                               The Court:  I'm not ...  

                                                                   



                               Shorthill:  ... way it is?  

                                                               



                               The Court: That issue is done. Discovery is complete.  

                                                                                                                   

                    Period.  We're moving on.   I've made my rulings.   If you  

                                                                                                            

                    believe I'm wrong, and you need to appeal it later on, you  

                                                                                                            

                    may appeal it to the Court of Appeals.   I'm not going to  

                                                                                                               

                     discuss it any more.  

                                                     



                               Shorthill:  Okay.  Okay.  I asked you on the, I think it  

                                                                                                                

                    was the 4th of October, 2006, but I'm not positive of the date,  

                                                                                                           

                     I could get the tape and replay it and figure it out, but ...  

                                                                                                         



                               The Court:  ... What is it you're requesting?  

                                                                                  



                                                              - 27 -                                                           2462
  


----------------------- Page 28-----------------------

           Shorthill:        I  asked  you  what  your  authority,  your  

                                                                                     

jurisdictional authority was in this case. And your answer  

                                                                                  

was, I don't know.  

                               



           The Court:  I don't understand your question.  I'm a  

                                                                                            

superior court [judge] appointed according to the rules and  

                                                                                        

authority of the government of Alaska. I preside over felony  

                                                                                    

cases.  

           



           Shorthill:  Okay.  So do you have an oath of office?  

                                                                                 



           The Court:  I do.  

                                



           Shorthill:  Okay.  Do you have an official bond?  

                                                                             



           The Court:  No, it's not required as a superior court  

                                                                                     

judge.  



           Shorthill:  It is required, because ...  

                                                               



           The Court:  No, it's ...  

                                               



           Shorthill:  ... it goes back ...  

                                                       



           The Court:  ... not.  

                                         



           Shorthill: ... to ...  

                                       



           The Court:  That's not going to ...  

                                                                 



           Shorthill:  ... 1943, sir.  

                                          

  

           The Court:  ... delay this trial. You may appeal that,  

                                                                                       

too. If you think that I [don't] have jurisdiction, you can  

                                                                                        

appeal that.  But we're not going to discuss jurisdiction with  

                                                                                       

50 jurors downstairs.  I've got jurisdiction in this case.  And  

                                                                                       

I'm exercising it.  

                         



                                          - 28 -                                                          2462
  


----------------------- Page 29-----------------------

                    Despite Judge Wolverton's ruling, the next several pages of transcript are  

                                                                                                                               



filled  with  Shorthill's  questions  concerning  the  judge's  oath  of  office,  the  judge's  

                                                                                                                        



"commission of office", and the judge's bond.  Shorthill explained that he was asking  

                                                                                                                          



this series of questions because he was "just trying to make sure that we have the right  

                                                                                                                             



people  doing  the  right  things  at  the  right  time."                      Judge  Wolverton  repeatedly  told  

                                                                                                                             



Shorthill that his case was not going to be dismissed - and that it was going to trial that  

                                                                                                                               



morning.  

                 



                    Shorthill then returned to the subject of undecided motions.  He produced  

                                                                                                                      



a copy of some paperwork from his file: specifically, a motion that Shorthill filed for the  

                                                                                                                                



return ofproperty allegedly seized by thepoliceillegally, together with an accompanying  

                                                                                                              



proposed  order  granting  the  motion.                      Shorthill  noted  that  his  proposed  order  was  

                                                                                                                             



unsigned - which he interpreted to mean that his motion "was never dealt with".  

                                                                                                                                     



Shorthill claimed that this was "proof positive" that there was at least one unresolved  

                                                                                                                   



outstanding motion.  

                                 



                    When the prosecutor pointed out that Judge Card had denied this motion  



at the conclusion of the suppression hearing, Shorthill responded by asserting that Judge  

                                                                                                                           



Card had interfered with his ability to examine the witnesses who had been subpoenaed  

                                                                                                                  



to attend the evidentiary hearing.  Judge Wolverton told Shorthill that he would "have  

                                                                                                            



to take that up on appeal".  

                                           



                    Shorthill then returned to his claim that his trial could not go forward  

                                                                                                                       



because the court had never held an omnibus hearing.  Judge Wolverton told Shorthill  

                                            



that he had already received several pre-trial hearings, and that he was not entitled to any  

                                                                                                                               



additional ones.  

                           



                    After Shorthill's above-described motions proved unsuccessful, Shorthill  

                                                                                                                       



announced that he had arranged for "an attorney general from the Lower 48" to work  

                                                                                                                            



                                                             - 29 -                                                         2462
  


----------------------- Page 30-----------------------

with him on the case.   For this reason, Shorthill told Judge Wolverton, he would be  

                                                                                                                                  



asking "for some time to get [this attorney] up to speed".  

                                                                                          



                     In  response  to  this  announcement,  Judge  Wolverton  asked  Shorthill,  

                                                                                                                       



"So you are going to have a lawyer represent you?"  Shorthill replied, "I am working  

                                                                                                                         



with an attorney general at this point.  And he is willing to work with me, yes, sir."  

                                                                                                                                   



                     The judge next asked Shorthill ifhe had a telephonenumber for this lawyer,  

                                                                                                                           



so that they could "get him on the line" right then.  The phone number was produced,  

                                                                                                                       



and Judge Wolverton's in-court clerk made the call.  When the attorney, Greg Quinlan,  

                                                                                                                         



came on the line, the following conversation ensued:  

                                                                                   



                      

                               The Court: Mr. Quinlan, this is Judge Wolverton from  

                                                                                                          

                    Anchorage, Alaska.  ...  I appreciate your taking the call on  

                                                                                                 

                     short  notice.         We  are  on  record  here,  prepared  for  jury  

                                                                                                          

                     selection outside the presence of the jury in a case involving  

                                                                                                   

                    the State of Alaska versus Mr. Carry Shorthill, who's here  

                                                                                                           

                    with his wife.  Mr. Shorthill has just advised me, in advance  

                                                                                                     

                     of bringing the jury up, that he has contacted you  and is  

                                                                                                              

                     interested in having you assist him with his case.  

                                                                                                  



                               Quinlan:  Now, I'm not licensed in Alaska, nor do I  

                                                                                                                

                    think that we could find an attorney that could represent him  

                                                                                                            

                     on short notice.  I have advised him that he ought to at least  

                                                                                                       

                     get a public defender to sit with him and advise him as to the  

                                                                                                             

                     evidentiary rules, because [I've] got serious concerns about  

                                        

                    his ability to ...  

                                              



                               The Court:  Represent himself?  

                                                                   



                               Quinlan:  Yes.  And frankly, I guess if I was his legal  

                                                                                                          

                     counsel,  I  would  be asking the Court to submit him to  a  

                                                                                                               

                    mental evaluation.  ...   I've got serious concerns about his  

                                                                                                             

                     situation, but I don't see how I can help him.  

                                                                                    

                               .  .  .  

                                      



                                                              - 30 -                                                          2462
  


----------------------- Page 31-----------------------

                               The  Court:          All  right.       As  I  understand  it,  ...  Mr.  

                                                                                                           

                     Shorthill ... is requesting a brief continuance so that he can  

                                                                                                            

                     get the assistance of counsel.  Is that correct, Mr. Shorthill?  

                                                                                                  



                               Shorthill:  Yes, sir.  

                                                        



                               Quinlan:         I  suspect  that  him  having  assistance  of  

                                                                                                             

                     counsel is essential to putting on a proper trial.  

                                                                                              



                               The Court:  Okay.  

                                                   



                               Quinlan:  And, like I said, I'll be happy to look at ...  

                                                                                                               

                     anything  that  [Shorthill  sends]  down  [to  me],  and  I'll  be  

                                                                                                             

                    happy to go over those and explain what they mean, and what  

                                                                                                          

                     I think that they represent [from] an evidentiary standpoint.  

                                                                                                                   

                     But I cannot represent anybody in Alaska.   Nor do I have  

                                                                                                          

                     contact with any attorney in Alaska at this point.  

                                                                                                 



                               The Court: Okay, Mr. Quinlan. Thank you very much  

                                                                                                         

                     again, and we'll let you hang up now.  

                                                                                 



                     Following  this  phone  conversation,  Judge  Wolverton  asked  Shorthill  

                                                                                                                        



directly if it was now his intention to have an attorney represent him.  Shorthill replied,  

                                                                                                                          



"No. I didn't say that I wanted [the attorney] to take over in my stead, but [only] to assist  

                                                                                                                              



me, as [someone] knowledgeable in the law[.]"  

                                                                            



                     But after hearing Shorthill's reply, Judge Wolverton declared that he no  

                                                                                                                                  



longer believed Shorthill was capable of representing himself:  

                                                                                                  



                      

                               The Court:  I think Mr. Quinlan pointed out [some]  

                                                                                                      

                    things that concern me about this situation, Mr. Shorthill.  

                                                                                                                   

                    Number one, he indicated what I believed all along.  [I know  

                                                                                                         

                    that] Judge Card made his ruling [allowing you to represent  

                                                                                                   

                    yourself],  ...  but  I  still  get  to  make  my  own  independent  

                                                                                              

                     assessment. I don't think there's any way that you're capable  

                                                                                                      

                     of representing yourself in this matter.  I don't think that you  

                                                                                                            



                                                              - 31 -                                                          2462
  


----------------------- Page 32-----------------------

                    have the understanding of the system.  I think it would be an  

                                                                                                             

                    injustice for you to represent yourself in this matter.  I think  

                                                                                                         

                    you need an attorney.  

                                                       



                              Shorthill:  Well, sir ...  

                                                                  



                               The Court:  And ... if you're not ready to go to trial,  

                                                                                                         

                    we'll deal with that, and then what - we can talk later on  

                                                                                                             

                    this morning about getting an attorney.  And we'll be tolling  

                                                                                                       

                    Rule 45 to get somebody available.   But if you're seeking  

                                                                                                     

                    more time to consult with Mr. Quinlan, you're entitled to do  

                                                                                                             

                    that.   You can ask him questions, you can send materials  

                                                                                                  

                    down, but he's indicated he can't represent you.   There's  

                                                                                                    

                    going  to  have  to  be  a  licensed  attorney  that's  going  to  

                                                                                                             

                    represent you here in Alaska.  

                                                                   



                               (Whispered conversation)  

                                                  



                               The Court:   If you're requesting a continuance, for  

                                                                                       

                    how long are you requesting?  

                                                 



                               (Whispered conversation)  

                                                  



                              Shorthill: Under the circumstances, I would be asking  

                                                                                                       

                    for 120 days.  

                                 



The judge told the parties that he was going to release the jury panel, and take a short  

                                                                                                                             



recess,  and  then  court  was  going  to  reconvene  to  settle  the  matter  of  Shorthill's  

                                                                                                                    



representation.  

                          



                    When court reconvened, Judge Wolverton formally ruled that Shorthill  

                                                                                                                       



could no longer represent himself:  

                                                      



                      

                               The Court: [Mr. Quinlan] said he doesn't think there's  

                                                                                                       

                    any way in the world you can represent yourself, and I don't  

                                                                                                         

                    believe  there  is  either.              I  think  that  you're  simply  not  

                                                                                                           



                                                             - 32 -                                                          2462
  


----------------------- Page 33-----------------------

                    qualified.  That's not criticism [of you].  ...  But you've had  

                    a very difficult time, it seems to me, following the procedural  

                                                                                                 

                    flow  of  things.           And  I'm  going  to  require  that  you  be  

                                                                                                            

                    represented by counsel. You can hire somebody if you wish.  

                                                                                                                  

                    And we're going to set up a time frame for you to find an  

                                                                                                             

                    attorney.  And if you don't find an attorney within that time  

                                                                                                          

                    frame, I'll appoint an attorney at your expense to represent  

                                                                                                   

                    you.  ...  

                                  



                              Now, if you want some time to look for an attorney,  

                                                                                                   

                    that's fine.  If you don't want to look for an attorney, I'm  

                                                                                                           

                    simply going to appoint a court-appointed counsel at your  

                                                                                                         

                    expense.  Would you like some time to try to find a lawyer?  

                                                                                                     



                               Unidentified Speaker: Yes.  

                                                                  



                              Shorthill:  Yes, sir.  

                                                        



                     Shorthill's case ultimately went to trial more than three years later, in  

                                                                                                                                 



December 2010.  Shorthill was represented at this trial by the Public Defender Agency.  

                                                                                                                                      



                     (b) The law pertaining to self-representation, and why we uphold  

                                                                                                                

                    the superior court's decision to require Shorthill to be represented  

                                                                                                         

                    by an attorney  

                               



                    As we explained earlier in this opinion, the United States Supreme Court  

                                                                                                                            



has  held  that  defendants  in  criminal  cases  have  a  constitutional  right  to  reject  the  

                                                                                                                                



assistance of counsel and to represent themselves.  Faretta v. California, 422 U.S. 806,  

                                                                                                                              



95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).  

                                                              



                    This  right  of  self-representation  exists  alongside  the  constitutionally  

                                                                                                            



guaranteed right to the assistance of counsel.  Between these two rights, the right of  

                                                                                                                                  



representation by counsel is paramount.  As this Court explained in James v. State,  

                                                                                                                       



                                                             - 33 -                                                          2462
  


----------------------- Page 34-----------------------

                      

                                                                                                             

                               [A] trial in which [the defendant] is unrepresented by  

                                                                                                        

                     counsel is [often] a farcical effort to ascertain guilt.  Thus,  

                                                                                          

                     [even  though]  a  defendant  has  clearly  and  unequivocally  

                                                                                                        

                     declared his or her intention to appear pro se , the trial judge  

                                                                                                    

                    must  [nevertheless]  conduct  a  thorough  inquiry  [before  

                                                                                                            

                     allowing the defendant to proceed without an attorney].  



                                                                      3  

                                                            

730 P.2d 811, 814 n. 1 (Alaska App. 1987).                                                                               

                                                                         The inquiry mentioned in this passage  



                                                                                                                                  

from James must take place on the record, and it must include advising the defendant of  



                                                                                                                               

the right to counsel, the important advantages of having counsel, and the dangers and  



                                                                                                                            

disadvantages of self-representation.  Id. at 813-14; Gladden v. State, 110 P.3d 1006,  



                                                                                                                                

 1009-1010 (Alaska App. 2005).  In addition, the court must affirmatively find that the  



                                                                                                                                  

defendant is minimally capable of planning a defense and presenting a coherent case to  



                                                                                                        

the jury.  Ramsey v. State, 834 P.2d 811, 814 (Alaska App. 1992); Burks v. State, 748  



                                                                     

P.2d 1178, 1180, 1183 (Alaska App. 1988).  



                                                                                                                                 

                    As  we  have  explained,  Shorthill  waived  his  right  to  an  attorney  in  



                                                                                                                                 

November 2006 and chose to represent himself, after being represented by counsel for  



                                                                                                                                

the first year of his litigation.  The superior court allowed Shorthill to do this, and the  



                                                                                                                             

validity of that 2006 decision is not directly challenged in this appeal.  Rather, the issue  



                                                                                                                                 

presented here is whether the superior court acted properly when it re-evaluated its  



                                                                                                                            

decision in October 2007 and concluded that it would be fundamentally unfair to allow  



                                                          

Shorthill to represent himself at trial.  



                                                                                                                         

                     Theleading caseon this issueistheUnited States SupremeCourt's decision  



                                                                                                                                 

in Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008).   In  



                                                                                                                                

Edwards, the Supreme Court concluded that trial courts have the authority to restrict the  



                                                                                                                               

right ofself-representation in situations wheredefendants, becauseofmental illness, "are  



     3    Modified on rehearing, 739 P.2d 1314 (Alaska App. 1987).  



                                                             - 34 -                                                          2462
  


----------------------- Page 35-----------------------

not competent to conduct trial proceedings by themselves."                                                         Id., 554 U.S. at 178, 95 S.Ct.               



at 2388.           



                          In reaching this decision, the Supreme Court drew a distinction between a                                                                    



defendant's competency to stand trial (                                    i.e., competency to understand the proceedings,                      



                                                                                                                                                  4 

                                                                                                                                                                      

to  confer   with   counsel,   and   to   assist   counsel   in   preparing   the   defense  )  versus  a  



                                                                                                                                                     

defendant's competency to conduct a defense unaided by counsel. The Court concluded  



                                                                                                                       

that this latter task required a greater degree of competency:  



                            

                                                                                                                      

                                       [This   Court's   cases   dealing   with   a   defendant's  

                                                                                                                                

                          competence to stand trial] set forth a standard that focuses  

                                                                                                                                      

                          directly upon a defendant's "present ability to consult with  

                                                            

                          his lawyer[.]" ...  These standards assume representation by  

                                                                                                                                       

                          counsel and emphasize the importance of counsel. They thus  

                                                              

                          suggest ... that an instance in which a defendant who would  

                                                                                                                                          

                          choose to forgo counsel at trial presents a very different set  

                                                                                                                              

                          of circumstances, which[,] in our view, calls for a different  

                                              

                          standard.  

                                              

                                       .  .  .  



                                                                                                                                     

                                       [A]n  individual  may  well  be  able  to  satisfy  [the]  

                                                                                                                                        

                          mental competence standard [to stand trial], [in that they] will  

                                                                                                                                      

                          be able to work with counsel at trial, yet at the same time  

                                                                                                                                           

                          [they] may be unable to carry out the basic tasks needed to  

                                                                                                                                         

                          present [their] own defense without the help of counsel.  



                                                                                               

Edwards, 554 U.S. at 174-76, 95 S.Ct. at 2386.  



                                                                                                                                                         

                          As examples of the "basic tasks" necessary to conduct a criminal defense,  



                                                                                                                                                                 

the Court cited its earlier decision in McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944,  



                                                                                                                                                                   

79 L.Ed.2d 122 (1984), where it described the component tasks as:  organization of the  



                                                                                                                                        

defense, making motions, arguing points of law, participating in voir dire, questioning  



       4     See Drope v. Missouri                    , 420 U.S. 162, 171; 95 S.Ct. 896, 903; 43 L.Ed.2d 103 (1975).  



                                                                              - 35 -                                                                           2462
  


----------------------- Page 36-----------------------

witnesses, and addressing the court and jury.  McKaskley, 465 U.S. at 174, 104 S.Ct. at  

                                                                                                                                  



949 (cited in Edwards, 554 U.S. at 176, 95 S.Ct. at 2387).  

                                                                                            



                     The Court noted that even when a defendant is mentally competent to stand  

                                                                                                                             



trial,  the  defendant  may  be  unable  to  accomplish  these  tasks  due  to  "disorganized  

                                                                                                          



thinking, deficits in sustaining attention and concentration,impairedexpressiveabilities,  

                                                                                                                        



[or] anxiety".  Edwards, 554 U.S. at 176, 95 S.Ct. at 2387.  

                                                                                            



                     The Court then explained that, in situations where a defendant is unable to  

                                                                                                                                  



accomplish these basic tasks, the right of self-representation must give way to society's  

                                                                                                                       



interest in having a fair trial:  

                                              



                      

                               [The]  right  of  self-representation  at  trial  will  not  

                                                                                                           

                     "affirm the dignity" of a defendant who lacks the mental  

                                                                                                      

                     capacity  to  conduct  his  defense  without  the  assistance  of  

                                                                                                             

                     counsel.  ...  To the contrary, ... the spectacle that could well  

                                                                                                          

                    result from his self-representation at trial is at least as likely  

                                                                                                        

                    to prove humiliating as ennobling.  Moreover, insofar as a  

                                                                                                               

                     defendant'slackofcapacitythreatensan improper conviction  

                                                                                                 

                     or sentence, self-representation in [this] exceptional context  

                                                                                                     

                    undercuts the most basic of the Constitution's criminal law  

                                                                                                           

                     objectives, providing a fair trial.  ...  See Martinez [v. Court  

                                                                                    

                     of Appeal of California], 528 U.S. [152,] 162, 120 S.Ct. 684[,  

                                                                                                         

                     691, 145 L.Ed.2d 597 (2000)] ("Even at the trial level ... the  

                                                                                                            

                     government's interest in ensuring the integrity and efficiency  

                                                                                                  

                     of the trial at times  outweighs the defendant's interest in  

                                                                                                             

                     acting as his own lawyer").  See also Sell v. United States,  

                                                                                                      

                     539 U.S. 166, 180, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003)  

                                                                                                      

                     ("[T]he  Government  has  a  concomitant,  constitutionally  

                                                                                        

                     essential interest in assuring that the defendant's trial is a fair  

                                                                                                           

                     one").  



Edwards, 554 U.S. at 176-77, 95 S.Ct. at 2387.  

                                                                          



                                                             - 36 -                                                          2462
  


----------------------- Page 37-----------------------

                     The Court noted that society's interest in a fair trial is actually two-fold:  

                                                                                                                                       



making sure that the trial is fair in fact, but also making sure that the public will perceive  

                                                                                                                         



that the trial is fair:  

                        



                       

                               [Judicial] proceedings must not only be fair, they must  

                                                                                                          

                     "appear  fair  to  all  who  observe  them."                      Wheat  v.  United  

                                                                                                      

                     States,  486  U.S.  153,  160,  108  S.Ct.  1692,  [1698],  100  

                                                                                                           

                     L.Ed.2d 140 (1988). ... The application of [the] basic mental  

                                                                                                       

                     competence standard can help in part to avoid this result. But  

                                                                                                             

                     given  the  different  capacities  needed  to  proceed  to  trial  

                                                                                                          

                     without counsel, there is little reason to believe that [this  

                                                                                                          

                     minimal standard of competence] alone is sufficient.  

                                                                                                        



Edwards, 554 U.S. at 177, 95 S.Ct. at 2387.  

                                                                      



                     Based on these considerations, the Supreme Court concluded that even  

                                                                                                                       



when a defendant is competent to stand trial, "the Constitution permits judges to take  

                                                                                                                               



realistic account of [a] particular defendant's mental capacities" when deciding whether  

                                                                                                                          



the defendant is capable of conducting their own defense without the assistance of  

                                                                                                                                  



counsel.  Edwards, 554 U.S. at 177-78, 95 S.Ct. at 2387-88.  Thus, "the Constitution  

                                                                                                                  



permits  [courts]  to  insist  upon  representation  by  counsel  for  those  [defendants]  

                                                                                                                 



competent enough to stand trial ... but who still suffer from severe mental illness to the  

                                                                                                                                 



point  where  they  are  not  competent  to  conduct  trial  proceedings  by  themselves."  

                                                                                                                                       



Edwards, 554 U.S. at 178, 95 S.Ct. at 2388.  

                                                                      



                     In  Shorthill's  case,  the  record  shows  that  Shorthill  had  significant  

                                                                                                                     



difficulties in performing the defense-related tasks described in Edwards :  organization  

                                                                                                                   



of  his  defense,  making  motions,  arguing  points  of  law,  questioning  witnesses,  and  

                                                                                                                                



addressing the court.  The record also supports the inference that Shorthill's inability to  

                                                                                                                                   



perform these tasks was due to some of the causes listed in Edwards - specifically,  

                                                                                                                   



disorganized thinking and deficits in sustaining his attention and concentration.  

                                                                                                     



                                                              - 37 -                                                          2462
  


----------------------- Page 38-----------------------

                    The primary distinction between the facts of Edwards  and the facts of  

                                                                                                                         



Shorthill's case is that the defendant in Edwards was diagnosed with a mental illness  

                                                                                                               



severe enough that there was a question regarding his competence to stand trial at all. In  

                                                                                                                                  



contrast, when Judge Wolverton ruled that Shorthill had to be represented by an attorney,  

                                                                                                                        



there was no finding that Shorthill suffered from a mental illness, nor was there any  

                                                                                                                               



doubt as to his competence to stand trial.  

                                                                



                    We acknowledge that Shorthill himself told the district court judge at his  

                            



pre-indictment hearing (in 2005) that he suffered from attention deficit disorder, for  

                                                                                                                                



which he was taking medication - and that, without his medication, he was "not able  

                                                                                                                



to do the things that normal people can do".  And we note that, at a later point in this  

                                                                                                                               



litigation (in 2008), Shorthill's behavior was apparently so erratic that Judge Wolverton  

                                                                                                                     



temporarily revoked his bail.  

                                               



                    But  the  current  record  would  not  support  a  finding  that  Shorthill's  

                                                                                                                    



difficulties in litigating this case by himself were the result of the same kind of mental  

                                                                                                                      



illness that was present in Edwards. Thus, we must decide whether the result in Edwards  

                                                                                                                        



hinged on the fact that the defendant was diagnosed as suffering from severe mental  

                                                                                                                          



illness.  

              



                    We conclude that the decision in Edwards did not turn on this fact.  The  

                                                                                                                               



problems discussed in Edwards  - a defendant's inability to organize a defense, to  

                                                                                                                   



formulate and  present  motions,  to  examine witnesses and present evidence,  and  to  

                                                                                                                                  



meaningfully argue points of law - are capable of prejudicing the fundamental fairness  

                                                                                                                         



of criminal proceedings regardless of their precise cause.  

                                                                                         



                    This is not to say that we think the diagnosis of mental illness was irrelevant  

                                                                                                                       



in  Edwards.           From  time  to  time,  all  people  suffer  from  the  cognitive  difficulties  

                                                                                                                    



discussed by the Supreme Court in Edwards - anxiety, disorganized thinking, inability  

                                                                                                                         



to express oneself cogently, and inability to sustain one's attention or concentration. The  

                                                                                                                                



                                                             - 38 -                                                          2462
  


----------------------- Page 39-----------------------

question is whether, for a particular defendant, these difficulties are so persistent and  

                                                                                                                               



pervasive as to undermine the fundamental fairness of the proceedings.  

                                                                                                                



                    A diagnosis of severe mental illness can sometimes provide a reasoned  

                                                                                                                       



basis for concluding that a particular defendant has the kind of persistent and pervasive  

                                                                                                                      



difficulties  that  Edwards  talks  about.                     But  in  the  present  case,  Shorthill's  severe  

                                                                                                                          



difficulties in defending himself were demonstrated in a different manner - by the  

                                                                                                                                



record of Shorthill's year-long effort to litigate without the assistance of counsel.  

                                                                                                                               



                    Even though Shorthill initially invoked his right to counsel (and told the  

                                                                                                                                



court that he was unable to defend himself), Shorthill later changed his mind.  After  

                                                                                                                            



Shorthill expressed the desire to represent himself, the superior court allowed him to do  

                                                                                                                                 



so for a year - starting in November 2006 and continuing until early December 2007,  

                                                                                                                            



when Judge Wolverton finally imposed a lawyer on Shorthill.  

                                                                                                 



                    During that year, and over the course of many court hearings (including a  

                                                                                                                                   



multi-day  suppression  hearing),  Shorthill  repeatedly  demonstrated  that  he  was  not  

                                                                                                                               



capable of performing "the basic tasks needed to present his own defense without the  

                                                                                                                   



help of counsel."  Edwards, 554 U.S. at 175-76, 95 S.Ct. at 2386.  

                                                                                                       



                    The record developed during this year of self-representation provided a  

                                                                                                                                   



reasonable basis for Judge Wolverton to conclude that Shorthill suffered from the kind  

                                                                                                                              



of persistent and pervasive problems identified in Edwards - problems that authorized  

                                                                                                                     



Judge Wolverton, in the exercise of his discretion, to stop Shorthill from representing  

                                                                                                                  



himself any longer.  

                                



                    For  these  reasons,  we  uphold  the  superior  court's  decision  to  require  

                                                                                                                         



Shorthill to be represented by a lawyer.  

                                                              



                                                             - 39 -                                                          2462
  


----------------------- Page 40-----------------------

          Shorthill's claim that he was not brought to trial within the time limits of  

                                                                                                

          Alaska Criminal Rule 45  

                                             



                    Shorthill argues that he was brought to trial outside the time limits of  

                                                                                                                                



Alaska's speedy trial rule, Criminal Rule 45.  Although Shorthill's case took nearly five  

                                                                                                                              



years to come to trial, Shorthill's argument on appeal focuseson the approximately seven  

                                                                                                                            



months between mid-December 2005 and mid-July 2006.  

                                                                                         



                    More specifically, Shorthill focuses on Judge Wolverton's handling of a  

                                                                                                                                  



motion that Shorthill filed in December 2005, seeking disclosure of various materials in  

                                                                                                                                 



the possession of the Municipality of Anchorage -materials that included the personnel  

                                                                                                                      



files of the officers involved in this incident, as well as various police policy manuals,  

                                                                                                            



and police procedural and tactical manuals.  

                                                                     



                    The filing of this discovery motion tolled the running of the Rule 45 clock.  

                                                                                                                                     



See Drake v. State, 899 P.2d 1385, 1388 (Alaska App. 1995), where we held that "the  

                                                                            



running of Rule 45 is tolled [under Rule 45(d)(1)] by the filing of a discovery motion that  

                                                                                                                              



requires court action."  But Shorthill argues that the Rule 45 clock resumed running  

                                                                                                                        



shortly thereafter - on December 16th - when Judge Wolverton issued an order  

                                                                                                                           



relating to Shorthill's discovery request.  

                                                                



                    In his December 16th order, Judge Wolverton granted disclosure of all of  

                                                                                                                                 



Shorthill's requested items - either directly to Shorthill's attorney, or to the court for  

                                                                                                             



an in camera review.  

                                   



                    The copy of this order that is contained in the court file shows that it was  

                                                                                                                              



served on the State, but it does not reflect that it was served on the Municipality of  

                                                                                                                                 



Anchorage (the possessor of the requested materials). Nevertheless, soon after the judge  

                                                                                                                            



issued  this  order,  an  attorney  representing  the  Municipality  and  another  attorney  

                                                                                                                       



representing the affected police officers appeared in court to contest the order.  Both  

                                                                                                                            



                                                             - 40 -                                                         2462
  


----------------------- Page 41-----------------------

attorneys filed pleadings in which they sought protective orders against the requested  

                                                                                                                      



discovery - in essence, motions asking the court to reconsider its decision.  

                                                                                                                       



                    This led to three months of litigation - starting in late December 2005 and  

                                                                                                                                



continuing through April 2006 - regarding (1) whether the Municipality had standing  

                                                                                                                        



to object to the court's discovery order, and (2) whether, or to what extent, the court  

                                                                                                                             



should modify its discovery order.  In the meantime, the Municipality submitted the  

                                                                                                                                



requested materials to Judge Wolverton for his in camera review.  

                                                                                                       



                    On  April  20,  2006,  Judge  Wolverton  issued  an  order  informing  the  

                                                                                                                               



attorneys for the Municipality and the police officers (1) that he had completed his  

                                                                                                                                



in camera review of the documents, and (2) that he had tentatively decided to disclose  

                                                                                       



some, but not all, of the requested documents to the defense. Judge Wolverton furnished  

                                                                                                                       



these selected documents to the Municipality and the police officers, and (at the same  

                                                                                                                             



time) the judge scheduled a hearing where the parties (including the Municipality and  

                                                                                                                               



the officers) would have a final opportunity to present arguments concerning the scope  

                                                                                                                            



of the disclosure.  

                             



                    Those hearings took place on May 2nd and 3rd. Toward the conclusion of  

                                                                                                                                  



the May 3rd hearing, Shorthill's attorney told Judge Wolverton that he wanted the judge  

                                                                                                                             



to continue the next pre-trial hearing for a period of six weeks - presumably to allow  

                                                                                                                            



time for the defense to examine the disclosed materials and pursue any investigation  

                                                                                                                 



suggested by them.  Judge Wolverton granted this request for a continuance, setting the  

                                                                                                                                



next pre-trial conference for June 13th.  But at the same time, the judge announced that  

                                                                                                                               



the Rule 45 expiration date for bringing Shorthill's case to trial would be extended to  

                                                                                                                                  



July 10th.  

                  



                    Immediately after Judge Wolverton made this announcement, Shorthill's  

                                                           



attorney told the judge that Shorthill believed Rule 45 should run against the State during  

                                                                                                                           



this additional six-week period.  But Judge Wolverton pointed out that, unless Rule 45  

                                                                                                                                 



                                                             - 41 -                                                          2462
  


----------------------- Page 42-----------------------

was tolled, the Rule 45 clock would expire on June 1st -  i.e., before the pre-trial  

                                                                                                                         



conference that the judge had just calendared for June 13th at the request of the defense.  

                                                                                                                                       



Judge Wolverton then told the defense attorney:  

                                                                            



                      

                               The Court:  You have to decide what it is you want to  

                                                                                                               

                     do.  [I am] clearly going to toll [Rule 45] through the next  

                                                                                                           

                    pre-trial conference if you're requesting six weeks to review  

                                                                                                       

                     [the discovery materials].  ...  [So] the trial date is going to be  

                                                                                                              

                     July 10th.  [And] Rule 45 is going to toll to July 10th.  

                                                                                                         

                      

                     On  May  10,  2006  (i.e.,  one  week  after  the  May  3rd  hearing),  Judge  

                                                                                                                            



Wolverton issued his final discovery order.  In this order, the judge released a specified  

                                                                                                                         



packet of documents to the State and to the defense, with the stipulation that "neither  

                                                                                                                         



party  [could]  use  any  of  the  documents  for  any  purpose  whatsoever  without  prior  

                                                                                                                              



application to the court."  

                                         



                     On June 13th, Shorthill's attorney filed a motion asking Judge Wolverton  

                                                                                                                      



to reconsider his limitation on the parties' use of the discovery materials. The judge held  

                                                                                                                                



a hearing on this request that same day.  At this June 13th hearing, the defense asked for  

                                                                                                                                  



a four-week continuance of Shorthill's case - in other words, a continuance beyond the  

                                                                                                                                 



July 10th trial date that Judge Wolverton had previously announced.  This request was  

                                                                                                                                



granted.  

                



                     Shorthill does not challenge any of the rest of the time that it took to bring  

                                                                                                                              



his case to trial.  

                          



                     The heart of Shorthill's argument on appeal is that Judge Wolverton's  

                                                                                                                  



discovery order of December 16, 2005 - the order in which the judge apparently  

                                                                                                                     



granted Shorthill's discovery request in full - was a final order that should have been  

                                                                                                                               



enforced, since neither the State nor the Municipality nor the police officers individually  

                                                                                                                    



ever directly opposed the order, nor did they file a pleading that was expressly labeled  

                                                                                                                           



                                                              - 42 -                                                          2462
  


----------------------- Page 43-----------------------

a "motion for reconsideration" of  the order.  Shorthill argues that, to the extent Judge  



Wolverton delayed enforcing his order for seven months (to allow the Municipality and                                                                                                                                        



the officers to seek a narrower scope of disclosure than originally ordered), the judge                                                                                                                                



acted improperly, and the elapsed time should have counted against the State.                                                                                                                                     



                                    It is true that the Municipality and the police officers did not use the words                                                                                                     



"reconsideration" or "opposition" in the titles of their pleadings; rather, they styled their                                                                                                                              



pleadings as motions for "protective orders" against the disclosures called for in Judge                                                                                                                               



Wolverton's December order.                                                      But as this Court recently observed in                                                               Crawford v. State                              ,  



"the character of a pleading is determined by its subject matter and not its designation."                                                                                                                                               



                                                                                                  5  

337 P.3d 4, 15 (Alaska App. 2014).                                                                                                                                                                                

                                                                                                       The Municipality and the officers were seeking  



                                                                                                                                                                                                                         

reconsideration and modification of the judge's December order, regardless of the exact  



                                                                                  

words used in their pleadings.  



                                                                                                                                                                                                                              

                                    The litigation of these matters - i.e., whether the Municipality and the  



                                                                                                                                                                                                                             

officers had standing to contest the scope of Judge Wolverton's December order, and  



                                                                                                                                                                                                                      

(if  so)  whether  the  judge  should  modify  the  scope  of  that  order  -  was  a  direct  



                                                                                                                                                                                                                  

consequence of Shorthill's initial motion for discovery. Thus, the time it took to conduct  



                                                                                                                                                                                                                             

this litigation was attributable to Shorthill's motion, and Rule 45 was tolled until this  



                                                                     

litigation was completed.  



                                                                                                                                                                                                                          

                                    As an alternative argument, Shorthill contends that Rule 45 should have  



                                                                                                                                                                                                                 

started running against the State on March 8, 2006 - the day after Shorthill's attorney  



                                                                                                                                                                                                           

filed a pleading that Shorthill now describes as a "non-opposition" to the protective  



                                                                                                                                                                                           

orders sought by the Municipality and the police officers. But Shorthill mischaracterizes  



                                                                                                                                      

the pleading that his attorney filed on March 7th.  



                                                                                                                                                                                                               

                                    Far from being a "non-opposition" to the Municipality's and officers'  



                                                                                                                                                                                                                                 

requests for modification of the discovery order, the defense attorney's pleading (by its  



         5        Quoting State v. Moad, 294 S.W.3d 83, 86 (Mo. App. 2009).   



                                                                                                           - 43 -                                                                                                         2462
  


----------------------- Page 44-----------------------

very title) was a "partial opposition" to these requests for modification.  And although  

                                                          



"partial opposition" is, technically speaking, an accurate description of this pleading,  

                                                                                                                       



Shorthill's attorney in fact objected to all but a fraction of the modifications sought by  

                                                                                      



the Municipality and the officers.  

                                                     



                    With regard to the standing issue, Shorthill's attorney declared that she was  

                                                                                                                               



"opposed to the Municipality's further involvement in this case", given the fact that the  

                                                                                                                                



officers themselves had filed a separate challenge to the superior court's discovery order.  

                                                                                                                                      



And with regard to the scope of disclosure described in the superior court's December  

                                                                                                                     



order,  Shorthill's  attorney  continued  to  assert  that  all  the  documents  Shorthill  was  

                                                                                                                              



seeking were "material and ... relevant to the facts of this case".  

                                                                                                    



                    The only information that Shorthill's attorney now said she was willing to  

                                                                                                                                  



do without was the "private information contained [in] the relevant documents" -  

                                                                                                                                 



specifically, "the officers' home addresses, [any] identifying information about [their]  

                                                                                                                           



spouses  and  children,  ...  financial  information,  social  security  numbers,  telephone  

                                                                                                                     



numbers, [and] insurance information [identifying their] beneficiaries".  The defense  

                                                                                                                         



attorney agreed that this information could be redacted from the relevant documents  

                                                                                                                    



before they were produced to her.  But she continued to insist on production of all the  

                                                                                                                           



documents encompassed by Shorthill's discovery motion.  

                                                                                           



                    Thus, Shorthill is completely mistaken when he asserts in his brief that this  

                                                                                                                                



March 7th pleading "indicated to the trial court that further litigation of the discovery  

                                                                                                                      



issue was unnecessary".  

                                        



                    We therefore conclude that Rule 45 was tolled during the time attributable  

                                                                                                                    



to the litigation and resolution of Shorthill's discovery motion - from the filing of the  

                                                                                                                                



motion in December 2005 until Judge Wolverton's issuance of his final order regarding  

                                                                                                                      



this matter on May 10, 2006.  

                                              



                                                             - 44 -                                                          2462
  


----------------------- Page 45-----------------------

                    But the Rule 45 clock did not begin running again on May 10th - because,  

                                                                                                                        



as we have already explained, Shorthill's attorney (acting in anticipation of the court's  

                                                                                                                          



final discovery order) had already requested a six-week continuance of the proceedings  

                                                                                                                   



when the parties came to court for the hearing on May 3rd.  

                                                                                             



                    When  Judge  Wolverton  granted  these  additional  six  weeks,  and  set  

                                                                                                                                



Shorthill's trial for July 10th, he expressly ruled that Rule 45 would be tolled until this  

                                                                                                                               



July 10th trial date - because, if Rule 45 was not tolled, it would expire before the six  

                                                                                                                                



weeks had elapsed.  Shorthill does not challenge this ruling on appeal.  

                                                                                                              



                    For these reasons, we conclude that Shorthill's speedy trial claim has no  

                                                                                                                                 



merit.  



          The superior court's decision to let the State introduce evidence of the  

                                                                                                                      

          semi-automatic rifle in Shorthill's vehicle at the time of the traffic stop  

                                                                                                                 



                    As we described early in this opinion, when Shorthill finally stopped his  

                                                                                                                                 



truck, he refused to get out of the vehicle.  In the process of pulling Shorthill from the  

                                                                                                                                



truck, one of the officers observed an SKS semi-automatic rifle lying in the cab of the  

                                                                                                                                



truck, and this rifle was seized.  

                                                  



                    This, however, was not the State's only evidence pertaining to the rifle. As  

                                                                                                                                 



we have also explained, Shorthill's wife was using a video camera to filmtheir encounter  

                                                                                                                      



with the police. This video showed the rifle on Shorthill's lap during the police chase.  

                                                                                                                                      



                     Shorthill's attorney sought to preclude the State from introducing any  

                                                                                                                               



evidence of the rifle at his trial.  He argued that the rifle was not used to threaten the  

                                                                                                                                



officers, that the officers were unaware of the rifle until after the pursuit was over, and  

                                                                                                                               



that the rifle was not otherwise relevant to the charges.                                   But the State argued that  

                                                                                                                               



Shorthill's actions with the rifle (laying it on his lap) tended to prove his state of mind  

                                                                                                                             



- his attitude toward the police - during the pursuit.  

                                                                                      



                                                             - 45 -                                                          2462
  


----------------------- Page 46-----------------------

                                On appeal, Shorthill argues that because his possession of the rifle was                                                                                             



lawful, and because he did not use the rifle to assault any of the officers, the fact that he                                                                                                             



had  the   rifle   in   the   truck   was   irrelevant   - or,                                                          if   minimally   relevant,   it   was   more  



prejudicial than probative.                                       



                                We agree that evidence of the rifle was potentially unfairly prejudicial, but                                                                                           



Shorthill's decision to place the rifle on his lap during the highway pursuit was also                                                                                                               



potentially probative of Shorthill's contemporaneous state of mind. See                                                                                                   Lerchenstein v.   



                                                                                                                   6  

State, 697 P.2d 312, 317-19 (Alaska App. 1985),                                                                                                                                         

                                                                                                                     where this Court upheld the admission  



                                                                                                                                                                                                    

of evidence that a murder defendant had been "angry and combative ... immediately prior  



                                               

to the [homicide]."  



                                                                                                                                                                                                          

                                On balance, given the record before us, Shorthill has failed to convince us  



                                                                                                                   

that the potential unfairness of this evidence so clearly outweighed its probative value  



                                                                                                                                                                                            

that the superior court erred in admitting the evidence. We therefore uphold the superior  



                                          

court's decision.  



  



                                                                                                                                                                   

                Shorthill's argument that the State violated its duty to present exculpatory  

                                                                      

                evidence to the grand jury  



                                                                                                                                                                                                       

                                Under Alaska law, a prosecutor who presents a case to the grand jury has  



                                                                                                                                                                                                     

a duty to apprise the grand jurors of exculpatory evidence. Frink v. State, 597 P.2d 154,  



                                                                                                                                                                                                 

 164-66 (Alaska 1979).  However, this obligation "extends only to evidence that tends,  



                                                                                                                                                                                                      

in and of itself, to negate the defendant's guilt."   Cathey v. State, 60 P.3d 192, 195  



                                                                                                                                                                                        

(Alaska App. 2002). A prosecutor is not required "to develop evidence for the defendant  



                                                                                                                                                                                                            

 [or] present every lead possibly favorable to the defendant."  Frink, 597 P.2d at 166.  



        6       Affirmed, 726 P.2d 546 (Alaska 1986).  



                                                                                                - 46 -                                                                                              2462
  


----------------------- Page 47-----------------------

                    Shorthill assertsthat theprosecutor who presented hiscaseto thegrand jury  

                                                                                                                              



violated this duty in two ways: by failing to present the video recordings that were taken  

                                                                                                                            



by cameras mounted inside the patrol cars of Officers Conley and Dykstra, and by failing  

                                                                                                                          



to play the audio of the 911 call that Shorthill made while the police were pursuing him.  

                                                                                                                                     



                    Withrespect to thevideos taken by thedashboardcameras, Shorthill argues  

                                                                                                                          



that this video evidence is exculpatory because it contradicts Officer Conley's testimony  

                                                                                                                     



to the grand jury regarding the third-degree assault charge.  

                                                                                           



                    Conley told the grand jury that Shorthill "swerve[d] ... and force[d] me  

                                                                                                                               



from the right lane [of the highway] into the left lane", causing Conley to fear that their  

                                                                                                                             



cars would collide, or that Shorthill's maneuver would force him into the median that  

                                                                                                                              



separated  him from oncoming  traffic.                        But it is not clear  that the dashboard  video  

                                                                                                                           



evidence contradicts Conley's testimony.  

                                                                 



                    The incident in question occurred when Conley was driving in the right- 

                                                                                                                           



hand lane of the highway and Shorthill was beside him to the right, in a merging lane that  

                                                                                                                               



was about to terminate.  

                                      



                    Although  "swerved"  may  have  been  too  strong  a  word  to  describe  

                                                                                                                      



Shorthill's maneuver, the video does show Shorthill's car coming appreciably closer to  

                                                                                                                                 



Conley's patrol car as the merging lane narrowed, with both vehicles on course to  

                                                                                                                                



occupy the right lane of the highway.   Shorthill's apparent intention was to prevent  

                                                                                                                        



Conley from forcing him onto the right shoulder of the road; he steered his truck so as  

                                                                                                                                 



to enter the right lane, even though Conley's patrol car was in his way.  

                                                                                                              



                    In other words, the video evidence is at least consistent with, if not directly  

                                                                                                                         



corroborative of, Conley's testimony that Shorthill intentionally drove toward him and  

                                                                                                                              



that he (Conley) needed to move left to avoid a collision.  

                                                                                        



                    Shorthill alsoargues that thevideoevidenceshows that areasonableperson  

                                                                                                                          



in Conley's position would not have perceived a threat of imminent serious physical  

                                                                                                                       



                                                             - 47 -                                                         2462
  


----------------------- Page 48-----------------------

injury. This second argument fails for much the same reasons as the first argument. The  

                                                                                                                                 



video evidence is consistent with the conclusion that Conley could reasonably have  

                                                                                                                              



feared that Shorthill's car would collide with his patrol car - either because Shorthill  

                                                                        



intended  this  result,  or  because  Shorthill  might  misjudge  the  amount  of  time  and  

                                                                                                                                



maneuvering room that was available to Conley before he was forced from his lane.  

                                                                                                                                   



                     It is true that the video evidence is likewise consistent with Shorthill's  

                                                                                                                     



theory of the case - that he was only trying to re-enter the main roadway as his merging  

                                                                                                                         



lane ended, to avoid the danger of being forced onto the right-hand shoulder of the  

                                                                                                                                 



highway. But the fact that the video evidence is arguably consistent with both Shorthill's  

                                                                                                                      



account and Conley's account does not make it "exculpatory" for purposes of the Frink  

                                                                                                                              



rule - because this evidence does not tend, in and of itself , to negate Shorthill's guilt.  

                                                                                                                                       



                     This brings us to Shorthill's argument that the audio recording of his 911  

                                                                                                                                



call was exculpatory evidence with regard to the charge of felony eluding.  Shorthill  

                                                                                                                        



argues that this 911 call is exculpatory because his conversation with the 911 operator  

                                                                                                                         



shows that he genuinely feared the officers, and that he honestly believed that it was not  

                                                                                                                                 



safe to pull over until he reached a public place (in this case, a gas station parking lot).  

                                                                                                                                       



                     In this appeal, the State does not contest Shorthill's interpretation of the  

                                                                                                                                 



felony eluding statute, AS 28.35.182 - Shorthill's implicit assertion that a person is not  

                                                                                                                                 



guilty of "knowingly fail[ing] to stop as soon as practical and in a reasonably safe  

                                                                                                                               



manner" if the person subjectively believed that it was unsafe to stop sooner. Indeed, the  

                                                                                                                                 



jury in Shorthill's case was instructed that "[t]o convict Mr. Shorthill [of felony eluding],  

                                                                                                                        



you must find beyond a reasonable doubt that he knowingly drove past the first place that  

                                                                                                                                 



he actually believed provided a practical and reasonably safe stopping point."  

                                                                                                                           



                     We express no opinion as to whether this is the proper interpretation of the  

                                                                                                                                  



statute.   Rather than resolve this question of statutory interpretation, we will decide  

                                                                                                                    



 Shorthill's grand jury claim, and his sufficiency of the evidence claim, on the assumption  

                                                                                                                     



                                                              - 48 -                                                          2462
  


----------------------- Page 49-----------------------

that the concept "as soon as practical and in a reasonably safe manner" is defined in  

                                                                                                                                  



terms of the defendant's subjective understanding of the situation.  

                                                                                                        



                    But even construing the offense in the manner that Shorthill suggests, the  

                                                                                                                                



911 audio would not "tend[], in and of itself," to negate Shorthill's guilt.  

                                                                                                                 



                     Shorthill and his wife initially called 911 when Officer Conley started  

                                                                                                                          



following them just past the Eklutna exit.  At that time, Shorthill told the operator that  

                                             



an unmarked police vehicle was following him, that he was driving to a public place  

                                                                                                                             



before he stopped his truck, and that the operator should tell the officer to "back off".  

                                                                                                                                      



                    The next time Shorthill conversed with the 911 operator, he asked her if she  

                                                                                                                                



had talked with the officers who were following him, and he again demanded that she  

                                



tell the officers to "back the hell off" because he was "scared for [his] life".  Shorthill  

                                                                                                                       



also mentioned that he wanted to speak with someone in the police department's internal  

                                                                                                                          



affairs section.  

                         



                    The third time that Shorthill conversed with the 911 operator, he yelled at  

                                                                                                                                  



her that another police officer was in front of him, and he wanted her to get the officers  

                                                                                                                         



to break off their pursuit.  He reiterated that the officers were "scaring [him] to death",  

                                                                                                                          



and he declared, "This is wrong."  

                                                      



                    These 911 conversations are consistent with Shorthill's claim that he was  

                                                                                                                               



genuinely afraid of the officers. However, the 911 conversations can also reasonably be  

                                                                                                                                  



interpreted as proof that Shorthill was acting aggressively, that his anger was escalating  

                                                                                                                      



each time he spoke with the 911 operator, and that he would only stop when he felt it  

                                                                                                                                   



was appropriate.  

                           



                    Because the 911 calls are susceptible of these conflicting interpretations,  

                                                                                                              



they are not the kind of evidence that, standing alone, negates Shorthill's guilt.  

                                                                                                                           



                    We further note that, even without the 911 audio, evidence of Shorthill's  



mental state was presented to the grand jury.  Officer Nelson testified at grand jury that,  

                                                                                                                              



                                                             - 49 -                                                          2462
  


----------------------- Page 50-----------------------

after the traffic stop, both Shorthill and his wife told the officers they did not stop their                                                                                                                                                                                                                                                      



truck sooner because they were in fear for their lives from the police officers.                                                                                                                                                                                                                                                     Nelson  



also told the grand jurors that Shorthill's wife said that they did not stop sooner because                                                                                                                                                                                                                                          



they were concerned about putting people in danger if they stopped on the side of the                                                                                                                                                                                                                                                                    



road.    



                                                       For these reasons, we reject Shorthill's contention that the State violated its                                                                                                                                                                                                                       



duty to present exculpatory evidence to the grand jury.                                                                                                                                                                              



                            The sufficiency of the evidence to support Shorthill's convictions                                                                                                                                                          



                                                        Shorthill   argues   that   the   evidence   presented   at   his   trial   was   legally  



insufficient to support his convictions for felony eluding and third-degree assault. When                                                                                                                                                                                                                                                    



a defendant claims that the evidence is not sufficient to support a criminal conviction, we                                                                                                                                                                                                                                                               



view the evidence (and all reasonable inferences to be drawn from that evidence) in the                                                                                                                                                                                                                                                                   



light most favorable to the verdict, and we ask whether a reasonable juror could have                                                                                                                                                                                                                                                             

concluded that the State had proved the defendant's guilt beyond a reasonable doubt.                                                                                                                                                                                                                                                                               7  



                                                                                                                                                                                                                                                                                                                                                      

                                                        Shorthill's  claims  that  the  evidence  was  insufficient  to  support  his  



                                                                                                           

convictions are primarily based on viewing the evidence in the light most favorable to  



                                                                                                                                                                                                                                                                                                                                                       

himself.   But as we just explained, this is not the test; we are obliged to view the  



                                                                                                                                                                                                                                                                                                

evidence in the light most favorable to upholding the jury's verdicts.  



                                                                                                                                                                                                                                                                                                                            

                                                       Viewing the evidence in this light, reasonable jurors could have concluded  



                                                                                                                                                                                                                                                                                                                                       

that Shorthill was guilty of third-degree assault for intentionally steering his vehicle  



                                                                                                                                                                                                                                                                                                                      

toward  Officer  Conley  under  circumstances  that  caused  the  officer  to  reasonably  



                                                                                                                                                                                                                                            

apprehend a danger of imminent serious physical injury.  



              7             See, e.g., Moore v. State , 298 P.3d 209, 217 (Alaska App. 2013).  



                                                                                                                                                                       - 50 -                                                                                                                                                                      2462
  


----------------------- Page 51-----------------------

                    Similarly, reasonable jurors could have concluded that Shorthill was guilty  

                                                                                                                         



of  felony  eluding.           The  evidence  supported  a  reasonable  inference  that  Shorthill's  

                                                                                                                 



protestations of fear to the 911 operator were not genuine, and that he refused to stop his  

                                                                                                                             



vehicle because he was angry, because he disliked the police, and because he did not  

                                                                                                                            



want to yield to them.  Likewise, the evidence supported a reasonable inference that  

                                                                                                                           



Shorthill's driving maneuvers during the police chase amounted to reckless driving (as  

                                                                                                                             



defined in AS 28.35.400), the other component of the felony eluding charge.  

                                                                                                                     



                    For these reasons, we conclude that the evidence presented at Shorthill's  

                                                                                              



trial was sufficient to support his convictions.  

                                                                      



          Conclusion  



                    The judgement of the superior court is AFFIRMED.  

                                                                                                   



                                                            - 51 -                                                       2462
  

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