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Thomas v. State (9/23/2016) ap-2522

Thomas v. State (9/23/2016) ap-2522

                                                                               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                                                     



ANDREW  VICTOR  THOMAS,  

                                                                                                      Court of Appeals No. A-11408  

                                                                                                                                                

                                                      Appellant,                                   Trial Court No. 3PA-10-2049 CR  

                                                                                                                                                              



                                        v.  

                                                                                                                   O  P  I  N  I  O  N  

                                                                                                                                                 

STATE OF ALASKA,  

                      



                                                      Appellee.                                     No. 2522 - September 23, 2016  

                                                                                                                                                          



                           Appeal from the Superior Court, Third Judicial District, Palmer,  

                                                                                                                                     

                           Eric Smith, Judge.  

                                                  



                           Appearances:                     Elizabeth             D.      Friedman,              Assistant            Public  

                                                                                                                                    

                           Advocate, Appeals and Statewide Defense Section, and Richard  

                                                                                                                                     

                           Allen,         Public           Advocate,              Anchorage,                for       the       Appellant.  

                                                                                                                                                     

                           Elizabeth  T.  Burke,  Assistant  Attorney  General,  Office  of  

                                                                                                                                              

                           Criminal Appeals, Anchorage, and Craig W. Richards, Attorney  

                                                                                                                                   

                           General, Juneau, for the Appellee.  

                                                                                             



                           Before:  Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                                                                                                   

                           Superior 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 early  August 2010, Andrew Victor Thomas was released from prison  



                                                                                                                       

where he had been serving a sentence for assaulting his long-time girlfriend, Susanna  



                                                                                                                              

Braden.   On August 4th, Thomas came to the cabin  where  Braden was staying and  



                                                                                                                              

demanded  that  she  leave  with  him.                       When  Braden  refused,  Thomas  stabbed  her  



                                                                                                                                     

repeatedly, and then he bludgeoned her several times in the head with a sledge hammer.  



                                                                                                                             

                    The stabbing portion of this assault was witnessed by another person who  



                                                                                                                            

was present in the cabin, and this person summoned help.   But by the time the  state  



                                                                                                                                

troopers arrived, Braden was dead.   After the troopers took Thomas into custody, he  



                                                            

repeatedly confessed to killing Braden.  



                                                                                                                              

                    Based on this episode, Thomas was charged with murder in the first and  



                                                                                                                             

second degrees.   Because Thomas was indigent, the Office of Public  Advocacy was  



                                            

appointed to represent him.  



                                                                                                                           

                    From the beginning, Thomas had a contentious relationship with his court- 



                                                                                                                                

appointed attorney.  Thomas disagreed with his attorney about how the case should be  



                                                                                                                                

investigated,  what the trial strategy should be,  and what pre-trial motions  should be  



               

pursued.  



                                                                                                                             

                    Severaltimes, Thomas asked to be allowed to represent himself. Each time,  



                                                                                                                               

the superior court concluded that Thomas was not competent to do so. (Thomas does not  



                                                     

challenge these rulings on appeal.)  



                                                                                                                   

                    In late 2010,  Thomas asked the superior court to grant him co-counsel  



                                                                                                                                    

status so that he could file various pre-trial motions that his attorney had refused to file.  



                                                                                                                       

Even  though  Thomas's  attorney  opposed  his  request,  the  superior  court  granted  



                                                                                                                                

Thomas's motion.   The court believed - mistakenly - that Thomas had a right to  



                                                                                                                           

participate as co-counsel if he and his attorney had unresolvable disagreements about  



                                 

what motions to file.  



                                                              - 2 -                                                          2522
  


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

                        In fact, the law is the opposite.                          Although a trial judge is required to give                       



                                                                                                                       1  

"due consideration" to a defendant's request for co-counsel status,                                                                                      

                                                                                                                         a defendant who is  



                                                                                                                                                  

represented by an attorney has no right to participate as co-counsel.  Christian v. State,  



                                                                                                                                              

276 P.3d 479, 484 (Alaska App. 2012); Ortberg v. State, 751 P.2d 1368, 1375 (Alaska  



                                                                                                              

App. 1988).  As we explained in Ortberg, 751 P.2d at 1375:  



                          

                                                                                                                             

                        Although             the       right       to      counsel             and        the       right       to  

                                                                                                                                 

                        self-representation are constitutionally protected, the right to  

                                                                                                                                  

                        participate as co-counsel or [to] have hybrid representation is  

                                                                                                                        

                        not.       The  trial court  has  broad  discretion  to  deny  hybrid  

                                                                                                                             

                        representation or co-counsel status.  Annas  [v.  State], 726  

                                                                                                               

                        P.2d [552,] 557 [(Alaska App. 1986)]; Cano v. Anchorage,  

                                                                                    

                        627 P.2d 660, 664 (Alaska App. 1981).  



                                                                                                                                       

                        Perhaps more importantly, this Court stated in  Ortberg that "co-counsel  



                                                                                                                                                      

[status] or hybrid  representation should only be allowed if [defense] counsel and the  



                                                                                                                                                     

defendant can work together and present a coherent defense."  751 P.2d at 1375.  



                                                                                                                                                       

                        This was obviously not the situation in Thomas's case.  Thomas made his  



                                                                                                                                                  

request for co-counselstatus precisely because he and his court-appointed attorney could  



                                                                                                                                              

not "work together and present a coherent defense".  Thomas disagreed with his attorney  



                                                                                                                                             

about the defense strategy, Thomas wished to pursue pre-trial motions that his attorney  



                                                                                                                                                             

refused to file, and Thomas's attorney openly opposed his request for co-counsel status.  



                                                                                                                                         

Given  these facts, the superior court abused its discretion when it granted Thomas's  



                                                      

request for co-counsel status.  



                                                                                                                    

                        All of this brings us to Thomas's claim on appeal:  



                                                                                                                                             

                        Among the pre-trial motions that Thomas filed as co-counsel,  Thomas  



                                                                                                                                           

asked the superior court to order the Office of Public Advocacy to pay for (1) additional  



      1     Cano v. Anchorage                 , 627 P.2d 660, 664 (Alaska App. 1981).                               



                                                                          - 3 -                                                                     2522
  


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

                                                                                                                         

investigation that Thomas wished to pursue, (2) expert witnesses whom Thomas wished  



                                                                                                                     

to retain (to wit, a psychiatrist and an expert on alcohol intoxication), and (3) additional  



                                                                                                                             

scientific testing (to wit, independent DNA testing of Thomas and everyone else who  



                                                                                                                       

was present at the crime scene, plus re-testing of the blood sample drawn from Thomas  



                                  

following his arrest).  



                                                                                                                                 

                    The superior court concluded that it had no authority to order the Office of  



                                                                                                                           

Public Advocacy to pay for these things,  since the agency had concluded that these  



                                             

expenses were unwarranted.  



                                                                                                                                

                    On appeal,  Thomas argues that the superior court had the authority to  



                                                                                                                          

overrule the Office of Public Advocacy's decisions on these matters - in other words,  



                                                                                                                

the authority to order the agency (against its will) to pay for the additional investigation,  



                                                                                                                               

expert witnesses, and scientific testing that Thomas wanted.  Thomas contends that the  



                                                                                                                               

superior court was required to hold an ex parte hearing (i.e., a hearing from which the  



                                                                                                                        

prosecutor would be excluded) to allow Thomas to fully and openly explain his reasons  



                                                                                                                          

for wanting these additional resources - so that the superior court could then decide  



                                                                                                                            

whether Thomas's arguments in favor of these additional resources had sufficient merit  



                                                                                                                           

to justify overruling the agency's decision and ordering the agency to pay for the things  



                           

Thomas wanted.  



                                                                                                                                

                    We reject Thomas's argument.  As we have explained, given the facts of  



                                                                                                                        

this case, Thomas's request for co-counsel status should have been denied - because  



                                                                                                                               

this request for co-counsel status arose directly from Thomas's disagreements with the  



                                                                                                 

tactical and strategic decisions of his court-appointed attorney.  



                                                                                                                          

                    When  Thomas  asked  the  superior  court  to  order  the  Office  of  Public  



                                                                                                                              

Advocacy to  fund  the extra investigation, expert witnesses, and scientific testing that  



                                                                                                                              

Thomas  wanted,  Thomas  was  using  his  co-counsel  status,  not  to  supplement  the  



                                                                                                                     

arguments presented by his court-appointed attorney, but rather to attack his attorney's  



                                                              - 4 -                                                          2522
  


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

                                                                                                                              

choices regarding strategy,  regarding what  investigation appeared to be material and  



                                                                                                                       

potentially promising to the defense, and regarding the most beneficial use of attorney  



                                        

time and agency money.  



                                                                                                                                 

                    Thomas was, in essence, asking the superior court to override the Office of  



                                                                                                                             

Public Advocacy's decisions about how the murder charges should be defended and how  



                                                                                                                               

the agency's resources should be allocated.  This was an improper use of Thomas's co- 



                        

counsel status.  



                                                                                                                      

                    The  Office  of  Public  Advocacy  was  required  to  represent  Thomas  



                                                                                                                                 

competently, but this duty of competent representation did not include the obligation to  



                                                                                                                                

pursue  every  conceivable  avenue  of  investigation  or  every  conceivable  method  of  



                                                                                                                        

defending the case.  As this Court noted in Allen v. State , 153 P.3d 1019, 1026 (Alaska  



                      

App. 2007):  



                                                                                                             

                    Given an unrestricted budget and freed of any constraints as  

                                                                                                      

                    to  probable  materiality  or  accountability,  a  lawyer  might  

                                                                                                             

                    cheerfully log many hours looking for the legal equivalent of  

                                                                                                             

                    a needle in a haystack.  A millionaire might retain counsel to  

                                                                                                             

                    leave not a single stone unturned.                    However, a defendant is  

                                                                                                          

                    not entitled to perfection, but to basic fairness.   In the real  

                                                                                                             

                    world,  expenditure  of  time  and  effort  is  dependent  on  a  

                                                          

                    reasonable indication of materiality.  



                                                                                                                             

(Quoting State v.  Jones ,  759 P.2d 558, 572 (Alaska App. 1988), which in turn was  



                                                                                                                    

quoting United States v. DeCoster, 624 F.2d 196, 211 (D.C. Cir. 1976) (en banc).)  



                                                                                                                                

                    If Thomas believes that the Office of Public Advocacy's choices were so  



                                                                                                                           

inept  as  to  constitute  incompetence  of  counsel,  he  may  pursue  a  petition  for  post- 



                                                                                                                               

conviction relief.  But Thomas was not entitled to have the superior court override the  



                                                                                                                                 

agency's choices of how and where to devote its time and money in Thomas's case.  



                                                                                                     

                    The judgement of the superior court is AFFIRMED.  



                                                              - 5 -                                                          2522
  

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