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Johnson v. State (7/25/2008) ap-2178

Johnson v. State (7/25/2008) ap-2178

     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

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) Court of Appeals No. A-9800
Appellant, ) Trial Court No. 3AN-05-3621 Cr
v. )
) O P I N I O N
Appellee. ) No. 2178 July 25, 2008
          Appeal  from the Superior Court,  Third  Judi
          cial  District, Anchorage, Philip R. Volland,

          Appearances:    Marjorie  Allard,   Assistant
          Public  Defender, and Quinlan Steiner, Public
          Defender,  Anchorage, for the Appellant.   W.
          H.  Hawley  Jr., Assistant Attorney  General,
          Office  of Special Prosecutions and  Appeals,
          Anchorage,  and  Talis J.  Colberg,  Attorney
          General, Juneau, for the Appellee.

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

          MANNHEIMER, Judge.

          Michael  J.  Johnson appeals his conviction for  felony
driving  under  the  influence.1   He  first  contends  that  the
evidence presented at his trial was legally insufficient to prove
that  he  was  under the influence at the time  he  operated  the
vehicle (as opposed to later, after the police stopped him).
          At   trial,   Johnson  testified   that,   during   the
          approximately three minutes between the time the police pulled
him  over  and the time they ordered him out of the car,  he  was
surreptitiously  taking drinks from a bottle of  vodka.   Johnson
attributed his poor performance on the field sobriety  tests  and
his  later  breath  test result  .173 percent blood  alcohol   to
these furtive nips inside the car.
          When  a  defendant  challenges the sufficiency  of  the
evidence to support a criminal conviction, an appellate court  is
obliged to view the evidence, and all reasonable inferences to be
drawn  from  that  evidence,  in  the  light  most  favorable  to
upholding  the lower courts verdict.  In other words, we  are  to
assess  the  sufficiency of the evidence in this  case  by  first
resolving  all conflicts and doubts presented by the evidence  in
favor of the jurys verdict,2 and then asking whether, viewing the
evidence  in  that  light, a reasonable  fact-finder  could  have
concluded  that  the States case was proved beyond  a  reasonable
          The  police officers who conducted the traffic stop  in
this  case  testified  that  they did not  see  Johnson  drinking
anything  following the stop.  The officer who made  the  initial
contact  shined  a light into the car after the  stop.   And  all
three  officers  involved  in the stop testified  that  they  are
always  on  guard  for any suspicious or potentially  threatening
movements  by the occupants of a stopped vehicle  and  that  they
would  have  responded immediately if they had  observed  Johnson
reaching under the seat.
          When we assess the totality of this evidence under  the
test   described  above,  we  conclude  that  the  evidence   was
sufficient  to  support  the jurys conclusion  that  Johnson  was
intoxicated  at the time of the traffic stop (as  well  as  three
minutes later).
          Johnsons   remaining  points  on  appeal  involve   the
complaints  that  he  made at his sentencing  hearing  about  his
attorneys performance.
          At   the  sentencing  hearing,  Johnson  expressed  two
complaints  about  his attorney.  First, he complained  that  his
attorney  had not attended Johnsons interview with the  probation
officer  who  prepared the pre-sentence report.  Second,  Johnson
complained  that, acting without Johnsons knowledge  or  consent,
his  attorney  had  asked  the court to continue  the  sentencing
hearing  for  five weeks (from June 12 until July  20).   Johnson
told Superior Court Judge Phillip R. Volland that he needed a new
attorney  and  (as  a consequence) a further continuance  of  the
sentencing  hearing,  because  his current  attorney  did  [this]
without [his] prior approval.
          Judge  Volland denied Johnsons requests for  a  further
continuance  and  for  a  new attorney.   The  judge  found  that
Johnsons attorney had acted properly in seeking a continuance  of
the  sentencing,  even if he had had no chance  to  consult  with
Johnson,  because the attorney needed time to review  the  States
addendum  to  the  pre-sentence report.   Judge  Volland  further
declared that he [did not] see that a change in counsel  at  this
point  would  be  to Mr. Johnsons benefit, given  the  fact  that
Johnson  faced a presumptive term of imprisonment and, thus,  the
judges sentencing discretion was quite limited.
          In  this appeal, Johnson argues that he is entitled  to
re-sentencing   because   Judge  Volland   did   not   adequately
investigate the possibility of granting Johnsons request to delay
the sentencing hearing so that he could look for a new attorney.
          In   past  decisions,  we  have  indicated  that   when
circumstances suggest a disabling conflict between  attorney  and
client,  a  judge  may  be required to investigate  and,  if  the
conflict  is  proved,  take  action.   See,  for  instance,   our
unpublished  decision in Weaver v. State, Alaska App.  Memorandum
Opinion No. 3308 (December 20, 1995), 1995 WL 17221357.
          But  the  facts  of Weaver are plainly  distinguishable
from the facts of Johnsons case.  Weaver involved claims that, if
true,  would  clearly  have warranted the appointment  of  a  new
attorney.  Johnson offered no such claims.
          Johnson  told  Judge Volland that, when  he  asked  his
attorney  to  attend  the  pre-sentence interview,  his  attorney
replied  that  he might be able to ... go.  Johnson further  told
Judge  Volland that, when his attorney did not show  up  for  the
interview,  the  probation officer assigned  to  write  the  pre-
sentence  report [went] ahead ... with the interview without  ...
[the] presence of [Johnsons] counsel.  But Johnson never asserted
that  he  objected to conducting the interview in the absence  of
his   attorney,  or  that  the  probation  officer  insisted   on
conducting  the  interview despite Johnsons  objection  that  his
attorney was not there.
          Moreover,   Johnson  has  not  alleged  that   he   was
prejudiced by his attorneys absence, and no prejudice is apparent
from  the  record.   We note that Judge Volland  explicitly  gave
Johnson  the opportunity to dispute any and all facts recited  in
the pre-sentence report.
          We  now  turn  to Johnsons second complaint  about  his
attorneys  performance:  the fact that his attorney asked  for  a
continuance of the sentencing hearing without consulting Johnson.
          As  explained above, Judge Volland found that  Johnsons
attorney  acted  appropriately in requesting the continuance,  so
that the attorney would have sufficient time to review the States
addendum to the pre-sentence report.  Moreover, Johnson  has  not
alleged (much less shown) that he was prejudiced by the five-week
delay of the sentencing hearing.
          Given  this  record,  Judge  Volland  could  reasonably
conclude  that Johnson had not raised the kind of grave complaint
about  his  attorneys performance that would have  triggered  the
judges duty to conduct a more thorough inquiry.
          Johnsons  final claim on appeal is that  Judge  Volland
erred  by  failing  to  more  fully explain  Johnsons  option  of
representing himself if he was dissatisfied with his attorney.
          After  Judge Volland denied Johnsons request for a  new
attorney and a further continuance of the sentencing hearing, the
following colloquy took place:
               Mr. Johnson:  I would like to request if
          I  could, you know, represent myself in  this
          matter, as I could fill in, you know, myself.
               The Court:  Mr. Johnson, have ...
               Mr.  Johnson:  I have  you know, I  have
          the paperwork to do the ... [to] reply on the
          objections  on the sentence memorandum  here,
          and ...
               The  Court:  Mr. Johnson, ...  Ill  give
          you  the opportunity to address anything that
          you  think  is  in error in the  pre-sentence
          report or the addendum, and [the opportunity]
          to  tell  me  what you think  an  appropriate
          sentence  is in this case and why.  You  have
          the right to do that ... at a sentencing.  So
          [defense counsel] is not the only one who  is
          going  to  be speaking on your behalf.   Hell
          make the legal arguments, if there [are] any,
          and  [hell  make] suggestions to  me.   [But]
          regardless of what he says, Im going  to  ask
          you  [personally] what you think, and you can
          tell me then.
               Mr. Johnson:  Okay.
After    Judge   Volland   clarified    these
procedural matters, Johnson never renewed his
request to represent himself.
          On   appeal,  Johnson  argues  that
Judge  Vollands  remarks (quoted  above)  led
Johnson  to believe that he was not  entitled
to  represent himself at sentencing. He  asks
this Court to remand his case to the superior
court  for an inquiry into whether  he  would
have   preferred  to  proceed   pro   se   at
          There  would  be merit to  Johnsons
request  if  he had clearly and unequivocally
declared  his  desire to proceed  without  an
attorney.4  But here, it appears that Johnson
was  simply  thinking  out  loud  about  this
possibility.   After Judge Volland  explained
that  Johnson  would  be able  to  personally
address the court regarding the matters  that
concerned  him,  Johnson did  not  renew  his
request to represent himself.
          Johnsons   case   illustrates   the
reason why appellate courts hold that a trial
judge  is  not obliged to pursue  a  criminal
defendants  request  for  self-representation
unless that request is clear and unequivocal.
As  the  Ninth Circuit explained in Adams  v.
Carroll, 875 F.2d 1441 (9th Cir. 1989), there
are   two   primary   rationales   for   this

     First,  it  acts as a backstop  for  the
     defendants right to counsel, by ensuring that
the  defendant  does not inadvertently  waive
that right through occasional musings on  the
benefits of self-representation.  See,  e.g.,
Meeks  [v. Craven], 482 F.2d [465,] 467 [(9th
Cir. 1973)] ([a] defendant cannot waive right
to  counsel by once stating, I think  I  will
[represent  myself].).  Because  a  defendant
normally gives up more than he gains when  he
elects   self-representation,  we   must   be
reasonably certain that he in fact wishes  to
represent  himself.  See Brewer v.  Williams,
430  U.S. 387, 404, 97 S. Ct. 1232, 1242,  51
L.  Ed. 2d 424 (1977) (courts must indulge in
every  reasonable presumption against  waiver
of the right to counsel).

     [Second, t]he requirement that a request
for  self-representation be unequivocal  also
serves an institutional purpose:  It prevents
a  defendant  from  taking advantage  of  the
mutual  exclusivity of the rights to  counsel
and  self-representation.   A  defendant  who
vacillates  at  trial between wishing  to  be
represented   by  counsel  and   wishing   to
represent himself could place the trial court
in   a  difficult  position:   If  the  court
appoints  counsel,  the defendant  could,  on
appeal, rely on his intermittent requests for
self-representation in arguing  that  he  had
been  denied the right to represent  himself;
if the court permits self-representation, the
defendant could claim he had been denied  the
right  to  counsel.  See Meeks, 482  F.2d  at
468.    The   requirement  of  unequivocality
resolves   this   dilemma  by   forcing   the
defendant to make an explicit choice.  If  he
equivocates, he is presumed to have requested
the assistance of counsel.

Adams, 875 F.2d at 1444.
          Thus, a trial judge has no duty  to
fully advise a defendant concerning the right
of representation (and the attendant dangers)
unless  the  defendant  makes  a  clear   and
unequivocal  request for self-representation.
Moreover,  the cases in this area  show  that
even  when  a request for self-representation
appears  on  its  face to be  unequivocal,  a
judge need not conduct a formal inquiry  when
the   record  as  a  whole  shows  that   the
seemingly  unequivocal  request  is  in  fact
          For  instance, in Fields v. Murray,
49  F.3d  1024 (4th Cir. 1995), the defendant
wrote  a  letter  to the judge  in  which  he
stated  that he [had] no choice left  but  to
dismiss  ... my coun[sel] and act as  my  own
coun[sel]     at     the     trial.5      How
ever,   other   statements  in  this   letter
suggested that Fieldss real interest  lay  in
personally   cross-examining  the   witnesses
against  him, not in proceeding pro se.   And
when  the  court  held a hearing  to  address
Fieldss  concerns,  Fields  did  not  ask  to
represent  himself, but rather complained  of
too  little contact with his attorneys.6   On
appeal,  the  Fourth Circuit ruled  that  the
record  as a whole supported the trial judges
conclusion  that Fields did not  clearly  and
unequivocally  invoke  his  right  to   self-
          Similarly,  in  Cross   v.   United
States,  893 F.2d 1287 (11th Cir. 1990),  the
court  held that even though Cross  made  the
seemingly unambiguous statement, I want to be
allowed  to  represent  myself  through  this
whole  trial, the trial judge was not obliged
to pursue a full explanation of the right and
risks  of  self-representation   because,  in
later  statements, Cross clarified that  what
he really wanted was permission to act as co-
          Likewise,  in State v. Carter,  513
A.2d  47  (Conn. 1986), during  a   complaint
about the performance of his public defender,
the  defendant  told the trial  judge,  I  am
misrepresented, and now I have  to  represent
myself.9    A   few  moments  later,   Carter
reiterated,  Ill have to represent  myself.10
But   once  the  judge  explained  the  trial
procedures and offered Carter the opportunity
for  further consultations with his attorney,
Carter acquiesced in having the trial proceed
with  his  appointed attorney.11  On  appeal,
the  Connecticut Supreme Court concluded that
the  record,  viewed as a whole, showed  that
Carter  did  not  clearly  and  unequivocally
invoke his right of self-representation,  but
rather  simply  expressed his dissatisfaction
with   his   appointed   counsel   and    his
misunderstanding of trial procedures.12
          See   also   People  v.  Tena,   67
Cal.Rptr.3d 412 (Cal. App. 2007),  where  the
court held that a defendants comments at  his
preliminary hearing, Can I go pro  per,  sir?
Your  Honor,  may  I  go pro  per?  were  not
unequivocal requests for self-representation,
given  the  record  as a  whole,  but  rather
impulsive   reactions  to  [the   defendants]
          frustrated attempts to secure an attorney who
would   subpoena   the  witnesses   that   he
          We  conclude that Johnsons  remarks
to  Judge  Volland about the  possibility  of
self-representation  fall  within  this  same
          Johnson told Judge Volland that  he
believed  there  were  errors  in  the   pre-
sentence  report.   He  complained  that  his
attorney  had not been present  at  the  pre-
sentence interview, and that his attorney had
asked  for  a  continuance of the  sentencing
hearing  without consulting  him.   Based  on
these  complaints, Johnson first asked  Judge
Volland  for a continuance of the  sentencing
hearing  so  he  could hire a  new  attorney.
Then, when Judge Volland denied this request,
Johnson  mentioned the possibility  of  self-
representation:  I would like to request if I
could,  you  know, represent myself  in  this
matter, as I could fill in, you know, myself.
          In    response,    Judge    Volland
explained that Johnson had the right to speak
directly  to  the  court  at  sentencing   to
address   any   errors  in  the  pre-sentence
report,  and  to express his  views  on  what
would  be  an  appropriate  sentence.    This
explanation  apparently  satisfied   Johnsons
concerns:  he responded, Okay, and he did not
renew his request to represent himself.
          In other words, Judge Volland could
reasonably conclude that Johnsons real desire
was  not  to  exercise  his  right  of  self-
representation,  but  rather  to   have   the
opportunity  to  personally  object  to   the
content of the pre-sentence report and to the
States  sentencing  recommendations.    Given
this  record, Judge Volland was under no duty
to  conduct a further, formal explanation  of
Johnsons  right  of self-representation  (and
its attendant risks).


     The  judgement  of  the  superior  court   is

  1 AS 28.35.030(n).

  2  Dorman  v.  State, 622 P.2d 448, 453 (Alaska  1981)  (citing
Martin v. City of Fairbanks, 456 P.2d 462, 464 (Alaska 1969)).

  3 Helmer v. State, 608 P.2d 38, 39 (Alaska 1980).

4See, e.g., Gladden v. State, 110 P.3d 1006, 1009 (Alaska
App.  2005);  McIntire v. State, 42  P.3d  558,  560-61
(Alaska App. 2002); Evans v. State, 822 P.2d 1370, 1374
(Alaska App. 1991); Burks v. State, 748 P.2d 1178, 1182
n.1  (Alaska App. 1988) (Coats, J., dissenting);  James
v. State, 730 P.2d 811, 814 n.1 (Alaska App. 1987).

5Fields, 49 F.3d at 1033.


7Id. at 1033-34.

8Cross, 893 F.2d at 1291.

9Carter, 513 A.2d at 50.

10  Id.

11  Id. at 51.

12  Id.

13  Tena, 67 Cal.Rptr.3d at 419-420.

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