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Crawford v. State (10/31/2014) ap-2432

Crawford v. State (10/31/2014) ap-2432


         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 @



                                                                 Court of Appeals No. A-10855  

                                  Appellant,                  Trial Court No. 3AN-08-13715 CR  


                                                                         O  P  I  N  I  O  N 


                                  Appellee.                       No. 2432 - October 31, 2014  

                 Appeal   from   the   Superior   Court,   Third   Judicial   District,  

                 Anchorage, Eric A. Aarseth, Patrick McKay, Jack W. Smith,  


                 and Michael Spaan, Judges.  

                 Appearances:  Keane-Alexander Crawford, in propria persona,  

                 Seward,  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 E. Smith,  


                 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-----------------------

                   Keane-Alexander Crawford was convicted of second-degree murder for  

shooting and killing his sister's fiancé, following a physical altercation between the two  


men.  Crawford represented himself at trial, and he continues to represent himself in this  



                   On appeal, Crawford contends that he was brought to trial outside the time  


limits of Alaska Criminal Rule 45 (Alaska's speedy trial rule), and in violation of the  

Sixth  Amendment  right  to  speedy  trial,  and  that  his  conviction  should  therefore  be  

reversed with prejudice.  In the alternative, Crawford argues that he is entitled to a new  


trial on several bases.   

                   Crawford contends that he is entitled to a new trial because his trial judge  


should have recused himself.   

                   In addition, Crawford asserts that his trial was flawed because the trial  

judge improperly restricted his  voir dire examination of prospective jurors, refused to  

enforce Crawford's subpoena for a prospective defense witness, made several erroneous  


evidentiary rulings, misinstructed the jurors on self-defense, and refused Crawford's  

request to instruct the jury on "defense of others".   

                   Crawford also argues that the trial judge improperly denied his post-verdict  

motion for a new trial.   

                   Finally, Crawford claims that he was unlawfully denied a fair opportunity  


to  defend  himself  because  he  was  indigent  and  the  trial  judge  declined  to  provide  

Crawford with funds to hire an expert witness.   

                   With respect to all but one of Crawford's claims of error, we conclude  

either that there was no error, or that the error Crawford has identified was harmless.  

                   But with respect to Crawford's claim that he was entitled to public funds  

to hire an expert witness, even after he declined to be represented by a court-appointed  


attorney, we conclude that we should seek supplemental briefing on this claim.  This  


                                                          - 2 -                                                     2432

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

question is one of first impression in this state, it turns on issues of statutory construction  


and constitutional law, and Crawford is representing himself in this appeal.  Even though  


Crawford has written a detailed and articulate brief, he is not trained in the law, and this  


Court believes that it would be fairer to Crawford - and to the future pro se  litigants  

affected by our decision - to have attorneys brief both sides of this controversy.  We  


therefore  will  solicit  supplemental  briefs  from  the  parties  and  from  the  state's  two  


criminal  defense  agencies,  the  Public  Defender  Agency  and  the  Office  of  Public  



          The procedural facts relating to Crawford's speedy trial claim, and an  


          overview of our analysis of this claim  

                    Criminal Rule 45(c)(1) provides that a criminal defendant must be brought  


to trial within 120 days from the date they were served with the charging document, but  


Criminal Rule 45(d) exempts various types of delay from this 120-day calculation.  

                    Crawford  was  arraigned  and  served  with  the  charging  documents  on  

December  7,  2008,  so  the  following  day  (December  8)  was  Day  1  of  his  Rule  45  


                    The Rule 45 clock ran for 30 days, until January 6, 2009, when Crawford  

filed motions for a change of venue and for special consideration due to his indigency  

and pro se  status. The filing of those motions tolled the running of the speedy trial clock.  


See Criminal Rule 45(d)(1).    

                    Crawford withdrew his motions on January 13th, but by that time there was  

an independent reason to toll the running of the speedy trial clock under Rule 45(d)(1):  


on  January  8th,  the  superior  court  ordered  Crawford   to  undergo  a  psychiatric  


examination to determine whether he was competent to represent himself.   

                                                            - 3 -                                                       2432

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

                    The report from that psychiatric examination was filed with the trial court  

on  January  29th,  but  the  report  was  inconclusive  because  Crawford  had  refused  to  


participate  in  the  examination.    The  court  therefore  ordered  a  second  psychiatric  


examination, and this issue remained undecided.  

                    Moreover, Crawford filed several other motions on January 28th:  motions  


for depositions of witnesses, to compel pre-trial discovery, to dismiss the indictment, and  


to sever the trials of the various charges against him - as well as renewed motions for  


a change of venue and for special consideration due to his indigency and pro se  status.  


                    While these motions were pending, Crawford filed a motion asking the trial  


court to order the Office of Public Advocacy to provide him with investigative assistance  


and with funds for expert witnesses.  Crawford also asked the court to appoint private  

counsel for him.  These motions became ripe for decision on February 25, 2009 (the day  


that Crawford filed his reply to the State's oppositions).  This meant that the speedy trial  


clock would begin to run again 30 days later - on March 27th - unless the trial court  

ruled on the motions sooner.  See Criminal Rule 45(d)(1).  

                    The trial court ruled on the last of Crawford's motions on March 24th.  

However, the speedy trial clock remained tolled because the court had not yet ruled on  

the  issue  of  whether  Crawford  was  competent  to  represent  himself.    The  court  had  


received the report from the second psychiatric examination on March 11th - but, again,  


Crawford  had  declined  to  participate.    So  on  March  25th,  the  court  ordered  a  third  

psychiatric examination, and the speedy trial clock remained tolled.   

                    The court received the report from the third psychiatric examination on  

April 16th.  Based on that report, the court granted Crawford's request to represent  


himself on April 22nd.  

                    With all pending motions resolved, the speedy trial clock began running the  


following day:  April 23rd.  This was Day 31 of the calculation.  

                                                             - 4 -                                                       2432

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                     Various pre-trial conferences and proceedings took place during the next     

several  weeks,  with  the  speedy  trial  clock  running.    The  court  set  a  final  pre-trial  

conference for June 10th, and the court scheduled Crawford's trial for Monday, June 22,  



                     June 22nd was 60 days after April 23rd (and April 23rd was Day 31).  


Thus, if Crawford's trial had begun on June 22nd, that would have been Day 91 for  


speedy trial purposes.    

                     But on June 16, 2009, Crawford requested a five-day continuance of his  


trial.  (Actually, Crawford's request amounted to a request for a seven-day continuance,  


because  the scheduled trial date - June 22nd - was a Monday; the five days that  


Crawford was asking for would have ended on a Saturday.)   

                     The court granted Crawford's request and rescheduled the trial for Monday,  

June 29th.  This continuance stopped the running of the speedy trial clock at Day 85.   

                     Then, on June 29th, Crawford asked the court for another continuance -  


or, in the alternative, dismissal of the charges against him - because he had not received  

all the pre-trial discovery he was entitled to.  Thus, the speedy trial clock remained tolled  


at Day 85.  

                     Three  days  later,  on  July  2nd,  the  trial  court  issued  its  ruling  on  the  


discovery  question.    The  court  found  that  the  State  had  violated  various  pre-trial  

discovery orders, but the court found that the State's violations had not been willful.  The  


court therefore denied Crawford's request to dismiss the charges, but the court granted  


Crawford's alternative request for a continuance of the trial.  Specifically, the court  

ordered a month's continuance of the trial - until August 3, 2009.  

                     On August 3rd (i.e., the scheduled trial date), Crawford asked the court to  

grant him another continuance to prepare and file motions and to obtain expert witnesses.  

                                                               - 5 -                                                           2432

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Crawford agreed to delay his trial for three months - until November 2nd - for these  


purposes.  The court granted Crawford's request.  

                    However, on September 18th, Crawford informed the court that he was  


withdrawing his request for the remainder of this three-month continuance, and that he  


wished  to  go  to  trial  as  soon  as  possible.    The  court  nevertheless  maintained  the  


November 2nd trial date.   

                    On November 2nd, Crawford asked the court for public funds to transport  

various defense witnesses, including three young children.  Crawford's motion led to  

hearings on the competency of the child witnesses.  Crawford also filed a motion asking  


the court to issue compulsory process so that Crawford could have access to a child  

witness, T.B., the homicide victim's son.  

                    Because of Crawford's motions, and the resulting proceedings on those  


motions, the speedy trial clock remained tolled at Day 85.  

                    On  November  9th,  the  trial  court  concluded  that  Crawford  was  not  


competent to represent himself, and the court appointed the Public Defender Agency to  


represent him.  

                    Because  the  court  had  not  yet  ruled  on  one  aspect  of  Crawford's  


November 2nd motions (specifically, the competency of the child witnesses), the speedy  

trial clock was still tolled.  But, in addition, the court expressly tolled the speedy trial  

clock for another 30 days - over Crawford's objection - to allow the Public Defender  


Agency  to  determine  if  there  was  a  conflict  that  would  prevent  the  Agency  from  

representing Crawford, and  (if not) to allow time for an assistant public defender to  


prepare for Crawford's trial.  

                    That same day (November 9th), Crawford petitioned this Court to review  


the trial court's ruling regarding Crawford's competency to represent himself.  This  

petition for review independently tolled the running of the speedy trial clock - because,  


                                                            - 6 -                                                      2432

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

until the issue of Crawford's competence to represent himself was resolved, the trial  

could not go forward.  

                    On December 15, 2009, this Court granted Crawford's petition for review  


and overruled the trial court on the issue of Crawford's competence to represent himself.  


Crawford's case was returned to the superior court for trial, with the speedy trial clock  


still standing at Day 85.  

                    Under Sundberg v. State, 667 P.2d 1268, 1270-71 (Alaska App. 1983),  


when a case is returned to the trial court following this Court's resolution of a petition  


for review, the trial court has a 30-day grace period to work the case back into its trial  


schedule.  Crawford's case returned to the superior court on December 16, 2009 (the day  


after we issued our ruling on Crawford's petition for review), and Crawford's trial began  


22 days later - on January 6, 2010.   

                    In sum:  On the day that Crawford's trial began, the speedy trial clock stood  


at Day 85.  Crawford was therefore brought to trial within the time limits of Criminal  


Rule 45.  

          Crawford's objections to the foregoing speedy trial analysis  

                    (a)  The  time  attributable  to  Crawford's  request  for  a  five-day  


               continuance of trial on June 16, 2009  

                    Crawford's first objection to the foregoing analysis involves our conclusion  

that Crawford effectively waived seven days of time when, on June 16, 2009, he asked  


the trial court for a five-day continuance of his trial.  Crawford argues that because he  


only asked for a five-day delay, it was improper to toll the running of Rule 45 for any  


greater length of time.  

                                                             - 7 -                                                         2432

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

                    But  as  we  explained   earlier,  Crawford's  request  for  a  five-day  delay  

effectively amounted to a request for a seven-day delay.  His trial was scheduled for   

Monday, June 22nd.  The five days he asked for would have ended on Saturday the 27th,  

so the trial could not have started until Monday the 29th.    

                    We further note that when Crawford requested the five-day continuance at  


the June 16th pre-trial conference, the trial court expressly told him that Rule 45 would  


be tolled for "one week".  Crawford did not object to the trial court's characterization of  


the situation.  

                    It  is  true  that  Crawford  returned  to  court  the  next  day  and  announced  


(1) that he was withdrawing his request for the five-day continuance, and (2) that he now  


wanted to go to trial as previously scheduled, on June 22nd.  But the trial court explained  


that, because of Crawford's earlier request, the trial of another case had already been set  

for June 22nd, and Crawford's own trial had been rescheduled for June 29th.  Thus, the  


court told Crawford, he had effectively "waived a week" of time under Rule 45.  

                    We agree that, under these facts, the trial court was justified in holding  


Crawford to the rescheduled trial date.  This conclusion rests on two principles.   

                    The first principle - illustrated by our supreme court's decision in Coffey  


v. State, 585 P.2d 514 (Alaska 1978), and by our own decision in State v. Jeske, 823 P.2d  


6 (Alaska App. 1991) - is that when a defendant rescinds a previous waiver of time  


under Rule 45 or a previous agreement to a continuance, the rescission does not take  


effect ab initio.  Rather, the Rule 45 clock remains tolled until the defendant's change  


of mind is affirmatively communicated to the trial court. 1  


                    The second principle is that the speedy trial clock does not necessarily  


begin running again immediately upon a defendant's announcement that they wish to  

     1    Coffey, 585 P.2d at 520-21; Jeske , 823 P.2d at 9-10.  

                                                              - 8 -                                                         2432

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

withdraw their earlier waiver or consent to a continuance.  Rather, as we suggested in  

Wardlow v. State, 2 P.3d 1238 (Alaska App. 2000), if the trial court's schedule has been  


altered in reliance on the defendant's earlier waiver of time, the trial court would be  

"justified  in  adding  several  days  to  the  Rule  45  calculation  in  order  to  work  [the  


defendant's] case back into the trial calendar - or in telling [the defendant] that he  


would have to wait until the scheduled trial date".  Id. at 1244.  

                   We  note  that  Criminal  Rule  45(d)(2)  speaks  of  the  "period  of  delay  

resulting from ... [a] continuance granted at the timely request or with the consent of the  


defendant."    When  a  defendant  requests  a  continuance,  and  then  later  rescinds  that  

request, the court may not be able to put the defendant's case back into the trial calendar  

in its original spot, and thus the defendant's request may result in a greater period of  


                   Compare our holdings in Sundberg v. State, 657 P.2d 843 (Alaska App.  

1982), as modified on rehearing, 667 P.2d 1268, 1270 (Alaska App. 1983), and Petersen  


v. State, 838 P.2d 812, 815 (Alaska App. 1992).  

                   In Crawford's case, when Crawford announced that he wished to rescind  


his earlier request for a continuance of his trial, the court explained that Crawford's  

June 22nd trial date had already been given to another case, and that Crawford would  


have to wait until the Monday after that - June 29th.  Given the record here, the trial  


court's action was permissible under Criminal Rule 45(d)(2).  

                                                           - 9 -                                                     2432

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

                    (b) The time attributable to Crawford's request for a continuance of  


               trial on June 29, 2009  

                    Crawford's next objection to our speedy trial analysis involves the trial  

court's response when, on June 29th, Crawford asked for a continuance of his trial - or,  


in the alternative, dismissal of the charges - because the State had failed to provide all  


of the required pre-trial discovery.    

                    When  Crawford  asked  for  this  continuance,  he  also  asked  the  court  to  


sanction the State for its discovery violations by charging the additional time against the  


State for purposes of Rule 45.  Crawford argued that it was unfair to make him choose  

between his right to pre-trial discovery and his right to a speedy trial.   

                    Following  a  series  of  hearings,  the  trial  court  ultimately  agreed  with  

Crawford that the State had violated its discovery obligations; but the court found that  

the State's violations had not been willful.  The court concluded that the proper remedy  


for the discovery violations was a continuance of the trial until August 3, 2009 - but the  


continuance would be charged against Crawford, not the State.  (The court recognized  


that if the delay was charged to the State, this would bring Crawford's case to the brink  


of dismissal under Rule 45(g).)  

                    On appeal, Crawford claims that the trial court's action violated Criminal  


Rule  45(d)(2).    Rule  45(d)(2)  is  the  provision  of  the  speedy  trial  rule  that  exempts  


periods of delay resulting from "continuance[s] granted at the timely request [of,] or with  


the consent of[,] the defendant".   

                    The final sentence of this rule declares: "A defendant without counsel shall  


not be deemed to have consented to a continuance [for purposes of this rule] unless the  


defendant has been advised by the court of the right to a speedy trial under this rule[,]  


and of the effect of [the defendant's] consent [to the continuance]."   

                                                             - 10 -                                                         2432

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                    Crawford argues that, because he was representing himself, and because the  

trial court neglected to expressly inform him that his requested continuance (if granted)  


would toll the running of the speedy trial clock, any delay attributable to the requested  

continuance had to run against the State.  


                    We reject Crawford's argument for two reasons.   

                    First, the wording of Criminal Rule 45(d)(2), taken as a whole, actually  


suggests that the trial court was not required to affirmatively warn Crawford about the  


Rule 45 consequences of the continuance.  The final sentence of Rule 45(d)(2) declares  


that  an  unrepresented  defendant  "shall  not  be  deemed  to  have  consented  to  a  


continuance" unless the court informs the defendant of the speedy trial consequences of  


their consent. But the initial sentence of Rule 45(d)(2) speaks of two different situations:  


situations  where  a  continuance  is  granted  "at  the  ...  request"  of  the  defendant,  and  


situations where a continuance is granted "with the consent" of the defendant.  

                    Comparing the wording of these two sentences, it appears that the drafters  


of Rule 45(d)(2) may have intended to draw a distinction between (1) situations where  

a  defendant  actively  seeks  a  continuance,  versus  (2)  situations  where  a  defendant  


acquiesces in a continuance proposed by the government or by the court - and that the  


drafters intended the final sentence of the rule (the proviso that requires the court to  


specially advise unrepresented defendants) to apply only to the second type of situation.  


                    In the present case, Crawford did not merely "consent" to the continuance.  


Instead, he affirmatively requested the continuance.  Thus, the final sentence of Rule  

45(d)(2) would not apply.  

                     Second, even if the final sentence of Rule 45(d)(2) did apply to Crawford's  


situation, it was satisfied.   

                    When Crawford made his motion to continue the trial on June 29, 2009, the  


trial court had already advised him several times of his right to a speedy trial under  

                                                             - 11 -                                                          2432

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

Rule 45.  In particular, just a few days earlier, the court had advised Crawford that "the  


filing of a motion automatically tolls speedy trial time, regardless of its nature," and that  


Rule 45 might conceivably be tolled "for as much as 30 days after the [motion] becomes  


ripe [for decision]."  At that time, Crawford assured the trial court that he was familiar  


with Criminal Rule 45.  Even though the trial court may not have repeated this warning  


when Crawford moved for a continuance of the trial on June 29th, Crawford had been  

warned that any motion he filed would stop the Rule 45 clock.   

                    Crawford also argues that his request for a continuance of the trial was  


conditioned on the court's agreeing to charge the delay against the State.  But when the  


trial court ruled on Crawford's motion, and continued the trial until August 3rd, the court  


expressly told Crawford that this continuance would be charged against him - because  


the State's discovery violations were not willful, and because charging the time against  

the State would risk dismissal of the charges under Rule 45(g).  

                    It is true that, in response to the trial court's ruling, Crawford filed a notice  

on July 9, 2009, stating that he did not consent to the tolling of Rule 45.  But even though  

Crawford  expressed  his  dissatisfaction  with  this  portion  of  the  trial  court's  ruling,  

Crawford did not actually rescind his request for a continuance of the trial, nor did he  


otherwise  assert  that  he  wanted  to  go  to  trial  immediately,  even  though  he  was  

presumably unprepared because of the State's discovery violations. Thus, the trial court  


had no occasion to alter the newly scheduled trial date of August 3, 2009.   

                                                             - 12 -                                                        2432

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

                    (c) The trial court's decision to characterize Crawford's August 3rd  


              pleading  as  a  motion  for  reconsideration  rather  than  a  motion  to  


               dismiss on Rule 45 grounds  

                    On August 3, 2009 (the day set for trial), Crawford filed a motion to dismiss  


the charges against him.  Crawford contended that the time for bringing him to trial  

under Criminal Rule 45 had expired three and a half weeks earlier - because (according  


to Crawford), when the court granted Crawford's request for a continuance of trial on  

July  2nd,  that  continuance  should  have  been  charged  against  the  State,  not  against  


                    The trial court treated Crawford's motion as a motion for reconsideration  


of the court's earlier decision to charge the continuance against Crawford.  In this appeal,  


Crawford argues his motion was, indeed, a motion to dismiss, and thus the trial court  

committed error when it recharacterized his motion.  

                    This is a distinction without a true difference.  No matter what Crawford's  

pleading was called, his underlying claim for relief was the same:  the assertion that the  


35-day delay of his trial from June 29th to August 3rd should have been charged to the  


State - either because it was the State's fault that the pre-trial discovery was incomplete,  


or because the trial court failed to expressly advise Crawford of the provisions of Rule  



                    As the Missouri Court of Appeals observed in State v. Moad, 294 S.W.3d  


83, 86 (Mo. App. 2009), "the character of a pleading is determined by its subject matter  


and not its designation."  Here, the substance of Crawford's request for relief was his  


assertion  that  the  trial  court  committed  error  when,  earlier,  the  court  ruled  that  the  

running of the speedy trial clock should be tolled from June 29th to August 3rd.  No  


matter what label we affix to Crawford's pleading, this was the issue before the court.  

                                                            - 13 -                                                       2432

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

                    Crawford fails to explain why the name attached to his request has any  


significance.  And we have already explained why the trial court's ruling was proper.  


                    In his motion of August 3rd, Crawford argued for the first time that he had  


a right to go to trial unprepared (because of the State's discovery violations), and thus  

it was improper for the court to delay Crawford's trial so that the State could cure those  


discovery  violations,  and  so  that  Crawford  would  have  time  to  analyze  the  newly  


disclosed information.   

                    But as we explained earlier, Crawford did not make this argument when the  


trial court was first considering this matter, nor did Crawford make this argument even  


after the trial court announced its ruling in early July (i.e., announced that Crawford's  

trial would be continued until August 3rd, but that Rule 45 would be tolled during this  

time).  Nor did Crawford apprise the trial court that he did, indeed, wish to go to trial  


even though he knew that the State had not disclosed all of the information required by  


the discovery rules.   

                    Instead, Crawford waited until the arrival of the new trial date (August 3rd),  


and then he filed a motion to dismiss in which he asserted that he would have preferred  


to  go  to  trial  in  early  July,  even  though  the  State  had  not  completed  its  pre-trial  


discovery.    This  type  of  procedural  maneuvering  -  accepting  the  benefit  of  a  


continuance granted at one's own request, and later arguing that the continuance was  


unnecessary or improper - is not allowed.   Compare Drake v. State, 899 P.2d 1385,  

1388-89 (Alaska App. 1995); State v. Jeske, 823 P.2d 6, 10 (Alaska App. 1991).  

                                                             - 14 -                                                          2432

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

                    (d)  Whether  the  trial  court  should  have  allowed  Crawford  to  

               withdraw his earlier consent to a delay of his trial from August 3rd to  


              November 2nd  

                   On August 3rd (i.e., the scheduled trial date), Crawford asked the court to  


grant him another continuance to prepare and file more motions, and to obtain expert  

witnesses.  Crawford initially requested a continuance of 45 days, but the trial court told  

Crawford that a continuance of that length would create scheduling issues - and that if  


Crawford wanted the continuance, he would have to agree to a trial in early November.  

In response, Crawford told the court, "If ... the only kind of continuance I can get is three  


months, then that's what I'll take."  

                   Ultimately, Crawford agreed to delay his trial until November 2nd, and the  

court granted the requested continuance.  

                   But on September 18th, after the court denied Crawford's request for public  

funding to hire expert witnesses, Crawford informed the court that he now wanted to  

withdraw  his  consent  to  the  remainder  of  the  three-month  continuance.    Instead,  

Crawford  asked  the  court  for  an  immediate  trial.                       The  court  declined  to  alter  the  


November 2nd trial date.  

                   On  appeal,  Crawford  contends  that  the  speedy  trial  clock  should  have  


started running again as soon as he notified the court that he wished to withdraw his  


consent to the remaining portion of the continuance.   But Crawford had agreed to a  


November 2nd trial date, and the court had already scheduled his trial for that date.   

                   The trial court informed Crawford at the outset that Crawford's request for  


a continuance created scheduling problems - and that if Crawford wanted a continuance  


of several weeks, the court would have to delay the trial for three months.  Crawford  

initially  told  the  court  that  he  was  fine  with  this;  then,  about  seven  weeks  later,  he  

changed  his  mind.    But  even  though  Crawford  may  have  changed  his  mind  about  


                                                          - 15 -                                                      2432

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

delaying his trial until early November, there is nothing in the record to indicate that the  


court's scheduling problems had changed - nothing to indicate that Crawford's case  


could reasonably be inserted into the court's trial calendar before the scheduled date of  


November 2nd.   

                    As we have already explained, when a defendant consents to a delay of  


trial, and then later withdraws their consent to the remainder of the delay, the court is not  


required to push all other cases off the trial calendar to accommodate the defendant's  

change of mind.  Rather, the court is entitled to a reasonable amount of time to work the  


defendant's case back into its trial schedule - and, in practice, this may mean that the  


defendant must wait until the scheduled trial date.  

                    On this record, Crawford has failed to show that the trial court abused its  


discretion  in  requiring  Crawford  to  abide  by  the  already  scheduled  trial  date  of  


November 2nd.  

                    We also note that, even if the trial court abused its discretion when, on  


September 18th, the court rejected Crawford's request for an immediate trial, Crawford  


filed a motion 11 days later - on September 29th - that would have tolled the running  


of Rule 45  in  any  event.               That motion  was a request for public funds  to  cover  the  


transportation and lodging of his defense witnesses, which included his three young  


                    The court concluded that it could not resolve Crawford's motion without  


making  a  preliminary  determination  as  to  whether  the  three  young  children  were  


competent  to  testify.    Hearings  on  the  children's  competency  took  place  between  

November 2nd and November 9th.  Thus, Crawford's motion for public funding of his  

witness expenses did not become ripe for decision until November 9th - one week after  


the previously scheduled trial date of November 2nd.  

                                                             - 16 -                                                        2432

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

                     (e) The time attributable to the litigation of whether Crawford was  

                competent to represent himself  

                     On November 9, 2009, the trial court concluded that Crawford was not  


competent to represent himself, so the court delayed the proceedings for 30 days to allow  


time for the Public Defender Agency (or the Office of Public Advocacy, if the Public  


Defender had a conflict) to select an attorney to represent Crawford, and to give this  


attorney time to prepare for trial.  The trial court ruled that the speedy trial clock would  


be tolled during this time.  

                     On appeal, Crawford argues that the trial court should not have tolled the  


running of Rule 45 during this 30-day period.  But when a court concludes that a pro se  


defendant is incompetent to represent themself, and that an attorney must be appointed,  


we believe that a reasonable period of delay would be tolled under Rule 45 even if the  


defendant objects.   

                     But in Crawford's case, this issue is moot - because, ten days after the trial  


court ruled that Crawford was not competent to represent himself, Crawford petitioned  

this Court to review the trial court's ruling.  See Crawford v. State, Court of Appeals File  


No. A-10610.  We granted Crawford's petition and, in an order issued on December 15,  


2009, we reversed the trial court's ruling.  

                     Under Criminal Rule 45(d)(1), the speedy trial clock is tolled for "period[s]  


of delay resulting from ... interlocutory appeals".  Here, Crawford sought interlocutory  


review of the trial court's ruling that he was incompetent to proceed pro se , so the time  


that this Court took to consider and resolve Crawford's petition for review is attributable  


to the litigation of the competency issue in the trial court.  We conclude that the speedy  


trial clock was tolled, not from the date that Crawford filed his petition (November 19,  


2009), but rather from the date of the trial court's underlying ruling:  November 9, 2009.  


                                                              - 17 -                                                           2432

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

                    We previously addressed this same issue in an unpublished opinion:  Green  


v. State, 1993 WL 13157158 (Alaska App. 1993).  In  Green, we ruled that when a  

defendant petitions us to review a trial court's decision, Rule 45 is tolled from the date  


of the challenged trial court decision (and not the later date when the defendant filed the  


petition for review).  Id. at *4.  We explained that, if we construed Rule 45 the other way  


(so that the speedy trial clock continued to run until the petition was filed), this would  

"artificially truncate[] the time available to seek appellate review" and would encourage  

"the hasty filing of ill-considered and ill-advised interlocutory appeals."  Id . at *4 n. 3.  


                    We continue to find the reasoning of  Green convincing.  We therefore  

conclude that, in Crawford's case, the speedy trial clock was tolled from November 9,  


2009 (when the trial court found that Crawford was incompetent to represent himself)  


to December 15, 2009 (when this Court granted Crawford's petition for review and  

summarily reversed the trial court).  

                    (Compare  Vail v. State, 599 P.2d 1371, 1379-1380 (Alaska 1979), where  


the supreme court held that Rule 45 was tolled from the initial filing of the petition for  


review until the date the petition was decided.  From the wording of the supreme court's  


decision, it appears that the court was not asked to decide the question of whether Rule  


45 should also be tolled from the date of the disputed trial court decision.  Rather, the  


issue litigated in Vail was whether petitions for review should be treated like trial court  


motions under Rule 45(d)(1), so that the speedy trial clock would automatically start  

running again after the supreme court had the petition under advisement for 30 days.)  

                    (f) Crawford's demand for immediate trial on December 21, 2009  

                    As  explained  in  the  preceding  section,  this  Court  decided  Crawford's  

petition for review (and reversed the trial court's ruling on Crawford's competency to  

                                                           - 18 -                                                       2432

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

represent himself) on Tuesday, December 15, 2009.  Crawford's case returned to the trial  


court on the following day, December 16th.  

                    Five days later, on Monday, December 21st, the trial court held its first  


hearing in Crawford's case following this Court's decision that Crawford should be  

allowed to represent himself.  

                    At that December 21st hearing, the trial court discharged the attorney who  


had been appointed to represent Crawford (based on the trial court's earlier finding of  


incompetency), and then the court discussed when Crawford's trial should begin.   

                    Crawford initially told the court that he wanted the court to hold one more  


pre-trial hearing, to make sure that all of his witnesses were properly subpoenaed in  


advance of the new trial date that the court would set, and to give Crawford a chance to  


secure standby counsel to help him at the trial.  The trial court suggested that this pre- 

trial conference could be held on Monday, January 4th, and then Crawford's trial could  


begin the next day, January 5th.  

                    Crawford did not immediately object to this schedule, but he told the court  

that he wanted the time to run against the State.  A few minutes later, though, Crawford  


told the court that he demanded an immediate trial - a trial that would start "today" or  


"tomorrow", even if this meant not getting his witnesses prepared, and going to trial  

without standby counsel.  

                    In  response,  the  trial  court  informed  Crawford  that,  given  "the  current  

availability of judges", the earliest that Crawford's trial could start would be the week  

of January 4th.  The court then reiterated its intention to hold a final pre-trial conference  


on Monday the 4th, and to begin jury selection on Tuesday, January 5th.  

                    In Sundberg v. State, 667 P.2d 1268, 1270 (Alaska App. 1983), this Court  


held that when a criminal case returns to the trial court following interlocutory review,  


Rule 45 will be tolled for a reasonable amount of time to allow the court and the parties  


                                                            - 19 -                                                       2432

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

to work the case back into the court's trial calendar.  We also stated that an extra 30 days  


would presumptively be reasonable.  Ibid. ; see also Keller v. State , 84 P.3d 1010, 1013  


(Alaska App. 2004).   

                   In Crawford's case, the trial court acknowledged the rule in Sundberg, but  


the court declared that it did not wish to delay Crawford's trial by 30 days.  Instead, the  

court scheduled Crawford's trial for two weeks in the future.   

                   All of this was taking place during the winter holiday season, and the court  

explicitly stated that its decision to set Crawford's trial for the week of January 4th was  


based on judge availability.  This was a valid consideration under  Sundberg, and we  

therefore conclude that the period of time between December 16, 2009 and January 5,  

2010 is excluded from the Rule 45 calculation.  

                   Crawford's trial did not begin on January 5th, but rather on January 6th.  

The extra day was due to the fact that, at the January 4th pre-trial conference, Crawford  


made an oral motion for the trial judge to recuse himself.  The judge denied this motion  


but, under the provisions of AS 22.20.020(c), the judge's decision had to be reviewed  


by  another  judge  before  the  proceedings  could  go  forward.    This  review  delayed  

Crawford's trial by one day.  

                   Because this delay was attributable to Crawford's motion for recusal, this  


extra day is likewise excluded from the Rule 45 calculation.  

                    (g) Conclusion regarding Rule 45  

                   For the reasons explained here, we conclude that only 85 days elapsed  


under Criminal Rule 45 between the time that Crawford was served with the charging  


documents (December 7, 2008) and the beginning of his trial (January 6, 2010).  Thus,  


Crawford was brought to trial within the time limits of Rule 45.  

                                                          - 20 -                                                      2432

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

           Crawford's speedy trial claim under the Sixth Amendment  

                     In addition to his Rule 45 speedy trial claim, Crawford also argues that his  


right to a speedy trial under the Sixth Amendment was violated.  

                     As this Court acknowledged in Alvarez v. Ketchikan Gateway Borough ,  

91 P.3d 289, 294 (Alaska App. 2004), there may be rare instances where, even though  


a defendant is brought to trial within the time limits of Rule 45, the delay in holding the  


defendant's  trial  still  may  have  prejudiced  the  defendant  to  such  an  extent  that  the  

defendant's Sixth Amendment right to a speedy trial is violated. 2  


                     In Alvarez , we pointed out that the Alaska Supreme Court has held that an  

unexplained trial delay of 14 months or more is presumptively prejudicial, 3 while a delay  



of eight months or less is presumed to be non-prejudicial.                                  But in applying these rules,  


a court must exclude any periods of delay caused by the defendant.     

                     Approximately 13 months elapsed between Crawford's arraignment in early  


December 2008 and the beginning of his trial in early January 2010.  However, more  


than half of this delay was attributable to Crawford's various pre-trial motions and his  

petition for review.  When the delays attributable to Crawford are subtracted from the  

total, only about six months of delay can be attributed to the State.   

     2    Citing Deacon v. State , 575 P.2d 1225, 1229 (Alaska 1978).  

     3    Alvarez , 91 P.3d at 294-95, citing               Rutherford v. State , 486 P.2d 946, 951-52 (Alaska   

1971), and Glasgow v. State, 469 P.2d 682, 688-89 (Alaska 1970).  

     4    Id. at 295, citing Nickerson v. State , 492 P.2d 118, 120 (Alaska 1971), and                                   Tarnef v.  

State, 492 P.2d 109, 112-13 (Alaska 1971).  

     5    Ibid. , citing Rutherford , 486 P.2d at 952 n. 15, and Springer v. State, 666 P.2d 431,  


435 (Alaska App. 1983).  

                                                              - 21 -                                                           2432

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

                   As  we  noted  earlier,  a  delay  of  eight  months  or  less  is  presumptively  

non-prejudicial.  Thus, to prevail on his Sixth Amendment claim, Crawford must show  


that he was actually prejudiced by the six-month delay.  

                   Crawford asserts that he suffered three kinds of prejudice.  First, he argues  


that the delay kept him incarcerated, and away from his family, for 13 months.  But we  


rejected this type of argument in Alvarez .  The defendant in Alvarez  argued that her  


pending case had caused her stress and had disrupted her life. 6  

                                                                                               This Court held that,  


even  if  this  claim  was  true,  it  did  not  entitle  Alvarez  to  relief  under  the  Sixth  

Amendment, in the absence of any showing that it prejudiced her defense. 7  

                                                                                                                 Like the  

defendant in Alvarez , Crawford makes no showing as to how his separation from his  

family actually prejudiced his defense.  

                   Crawford next argues that, during the delay, he was incarcerated and had  


no access to investigative or expert services.  But though Crawford's incarceration may  


have hindered his access to investigators and expert witnesses, the delay did not hinder  


                   Third  and  finally,  Crawford  argues  that,  because  of  the  delay,  some  

witnesses' memories were "greatly dimmed".   

                   Crawford offers two witnesses as examples of memory loss.  But one of  

these  witnesses  had  difficulty  remembering  the  details  about  the  incident  when  he  


testified to the grand jury just two weeks after the shooting.  

                   Although the second witness testified at trial that she could not remember  


if the homicide victim tried to strangle Crawford before Crawford shot him, there is no  


indication in the record that this witness had any such memory at any earlier time.  And  


     6   Alvarez , 91 P.3d at 295.  

     7    Ibid.  

                                                          - 22 -                                                      2432

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

if, when the witness said that she could not remember the purported strangling, she was  


actually saying that she was unaware of this aspect of the occurrence, then this would  


not prove a loss of memory.  The record does not otherwise show that the witness was  


ever aware of this purported happening.    

                    In short, Crawford has not shown that he suffered actual prejudice from the  


approximately six months of delay that was not attributable to him.  For these reasons,  


we reject Crawford's Sixth Amendment claim.  

          The superior court's refusal to enforce the subpoena for Trevon Brown  

                    Crawford wished to call Trevon Brown to testify at his trial.  Trevon was  


the  ten-year-old  child  of  the  homicide  victim  and  Crawford's  sister,  Kerri  Nichols.  


(He was thus Crawford's nephew.)  Trevon was present in the apartment on the night of  


the homicide, and he gave a statement to the police about what he saw and heard.   

                    A subpoena was issued for Trevon, which the state troopers served on his  


mother,  Kerri  Nichols  -  but  Nichols  refused  to  accept  the  subpoena,  and  she  also  

refused to reveal Trevon's location, other than to assert that her son was out of state for  


the duration of Crawford's trial.  Nichols told Crawford's standby counsel she did not  

intend to bring Trevon to court.  

                    When Crawford insisted that Trevon should testify, the trial judge held a  


hearing for the express purpose of ascertaining "any concerns that Ms. Nichols might  


have regarding Trevon Brown testifying", and to "explor[e] ... the idea of telephonic  



                    At this hearing, Nichols testified that she believed it would be frightening  


and traumatic for Trevon to appear as a witness at Crawford's trial.  When the judge  

                                                            - 23 -                                                       2432

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

asked Nichols if it might be easier for Trevon to testify by telephone, Nichols replied, "I           

think my preference would still be that he just be left alone."  She then added:  


                                   Nichols :      Reliving  [the  homicide]  is  going  to  be  

                        traumatic, horribly.  You know, given those two options [of   

                        appearing in person or appearing telephonically], if I had to         

                        pick one - well, of course, he doesn't want to actually be  

                        here and see the person that killed his daddy.   I just - that's  

                        - I don't know.  

                        Crawford told the court that he believed Trevon was still in Alaska, and that     


Nichols was preventing Trevon from testifying because she believed he might not back  

up her version of events on the night of the shooting.  Crawford also called Nichols's  

adoptive father to testify concerning Nichols's character for untruthfulness.  

                        Based on the testimony at the hearing, the trial judge found that Nichols  


knew  where  Trevon  was,  and  that  she  had  the  ability  to  produce  him  as  a  witness.  

Nevertheless, the judge decided not to compel Nichols to disclose Trevon's location.  

The  judge  stated  that  he  was  unsure  whether  he  had  the  authority  to  make  Nichols  


disclose this information, and the judge also stated that he did not want to put Nichols  


in a position where, by hiding Trevon's whereabouts, she would be committing a crime.  


The judge also worried that Nichols might have already committed the crime of witness  

tampering, 8 by sending Trevon out of state after the troopers served the subpoena.   


                        The judge further declared that he did not intend to threaten Nichols with  

contempt.  He stated that he found the prospect of incarcerating Nichols if she refused  

to cooperate "distasteful", and he added that he saw nothing to make him believe that  

Nichols was motivated by "anything other than the best interests of the child."  

      8     See AS 11.56.540(a)(2).  

                                                                        - 24 -                                                                   2432

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

                             The judge also stated that Crawford had failed to suggest any reason to   

believe that Trevon's testimony would differ from what was contained in his statement     

to the police.  And the judge suggested that Trevon might not be competent to testify,   

even if he was subpoenaed.  

                             For all of these reasons, the trial judge ruled that Trevon was "unavailable"  


as a witness for purposes of Alaska Evidence Rule 804(a).  

                             Crawford immediately objected to the judge's decision.  Crawford argued  


that the judge was engaging in unfounded speculation when he assumed (for purposes  


of his ruling) that Nichols would refuse to disclose Trevon's whereabouts, even if the  


court directly ordered her to do so, and when he assumed that Trevon would be unable  


or unwilling to testify, even if Trevon was subpoenaed and brought to court.   

                             The trial judge agreed with Crawford that the situation was uncertain - but  

the judge declared that it was precisely these uncertainties that had convinced him not  


to threaten Nichols with contempt for failing to disclose Trevon's whereabouts.  

                             The judge committed error in his handling of this situation.   

                             A  criminal  defendant  has  the  right  to  have  a  court  issue,  and  enforce,  


compulsory process to obtain any witness's testimony (unless the witness has a privilege  


not  to  testify). 9  

                                      Here,  the  witness  was  a  young  child,  under  the  legal  and  physical  

control of his mother.  Nichols, the witness's mother, had been served with a subpoena  


for her son, but she refused to accept the subpoena, and she openly declared that she did  

not wish to produce Trevon to testify at Crawford's trial.   


                             The trial judge refused to order Nichols to disclose her son's whereabouts  

- in part because the judge felt that it would be "distasteful" if he had to hold Nichols  

       9      See the Sixth Amendment to the United States Constitution and Article I, Section 11   

of the Alaska Constitution.  

                                                                                      - 25 -                                                                                   2432

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

in  contempt  for  refusing  to  answer.                  But  that  issue  never  arose,  because  the  judge  


declined to take even the preliminary step of directing her to answer.  We agree with  


Crawford that it was complete speculation for the judge to assume that Nichols would  


disobey a direct order to disclose her son's whereabouts.  

                    The trial judge also stated that he did not wish to question Nichols about  

Trevon's whereabouts because, in answering these questions, Nichols might reveal that  


she had already engaged in witness tampering.  But the fact that Nichols might have  

committed a crime in her efforts to defeat Crawford's right of compulsory process was  


hardly a justification for the judge's refusal to take steps to enforce Crawford's right.   

                    Compare Smiloff v. State, 439 P.2d 772, 776 (Alaska 1968), where the  


supreme court held that a trial judge committed error by refusing to issue a subpoena for  


a potential eyewitness, based on the judge's speculation that the witness might have to  


be advised of their right against self-incrimination.   

                    Finally, it was complete speculation for the judge to assume that Trevon  


would refuse to testify, or would be found incompetent to testify, if he was brought to  



                    In sum, Crawford was entitled to have the superior court at least try to  

enforce his right to compulsory process.  It is possible that the superior court's efforts  

might  have  led  to  an  uncomfortable  confrontation  with  Kerri  Nichols.    But  given  

Crawford's right to Trevon's testimony, and given Nichols's refusal to disclose her son's  


whereabouts, it was the court's duty to engage in that confrontation.  

                    We can not know if judicial efforts to procure Trevon's attendance at trial  


would ultimately have proved successful.  But the judge was required to take reasonable  


steps to try to enforce the subpoena - and he failed to do so.  

                                                            - 26 -                                                       2432

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

          The superior court's rulings that (1) Trevon Brown was "unavailable" as  


          a  witness,  as  defined  in  Evidence  Rule  804(a),  but  that  (2)  Trevon's  

          hearsay statements were not admissible under Evidence Rule 804(b)  

                   As we have explained, when the judge refused to enforce the subpoena for  


Trevon,  he  tried  to  lessen  the  impact  of  his  ruling  by  declaring  that  Trevon  was  


"unavailable" as defined in Evidence Rule 804(a)(5) - thus potentially allowing the  

parties  to  introduce  some  of  Trevon's  hearsay  statements  under  the  provisions  of  


Evidence Rule 804(b).   

                   The judge's action appears to have been prompted by the State.  In both its  


pre-trial pleadings and in its argument to the trial judge on this issue, the State took the  


position that if the judge ruled that Trevon was unavailable as a witness, then Crawford  


would be able to introduce Trevon's pre-trial statements to the police under the residual  

hearsay exception codified in Evidence Rule 804(b)(5).  

                   We conclude that the judge committed error when he declared that Trevon  


was "unavailable" for purposes of Evidence Rule 804.   

                   Evidence Rule 804(a)(5)  declares that a witness is "unavailable" if the  

witness is absent and "the proponent of the [witness's] statement has been unable to  


procure  the  [witness's]  attendance  ...  by  reasonable  means[,]  including  process."  

Although  this  language,  if  read  literally,  might  be  construed  to  cover  the  situation  

presented here, we doubt that the framers of the rule intended to vest judges with the  

power to make witnesses unavailable simply by refusing to enforce a lawful subpoena,  

or by refusing to employ other reasonable means of procuring the witness's presence.  


                   This  error  was  compounded  later,  at  Crawford's  trial,  when  the  State  

reversed its position and opposed Crawford's attempt to introduce a portion of Trevon's  


pre-trial statement under Evidence Rule 804(b)(5).  

                                                          - 27 -                                                      2432

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

                      In his out-of-court statement, Trevon told the police that Crawford and the   

victim, Anthony Brown (Trevon's father) were in a room together, and Brown asked                                    

Crawford  to  leave  the  house.    Trevon  stated  that  Crawford  began  screaming  to  his  

children to put their coats on, because they were leaving, and then Brown "got all angry,  


and [that's] when he said all that stuff."  

                      When Crawford asked to introduce this evidence under Rule 804(b)(5), the  


State opposed the admission of Trevon's statement - arguing that the residual hearsay  


exception in Rule 804(b)(5) was to be used only in exceptional cases, and that Trevon's  

statement was not more probative than the other available evidence on the point for  

which it was offered, since several other witnesses were available to testify about what  


was going on in the room at that time.  In particular, the prosecutor argued:  


                                 Prosecutor :  We have all these other folks [who] were  


                      actually in the room that [have made] statements about what  


                      was  going  on  in  the  room.                      Now,  I  understand  that  Mr.  


                      Crawford doesn't like what they're saying, but those are the  


                      other statements.  

                      The trial judge ultimately precluded Crawford from introducing Trevon's  

out-of-court statement.  The judge explained his ruling this way:  


                                  The  Court:    [Trevon]  was  in  [an  adjoining]  room,  

                      unable  to  see  what  was  going  on  in  the  other  room.    Mr.  

                      Crawford is offering [Trevon's statement] basically to try to  


                      establish [the] timing ... of certain events, and [Trevon] would  


                      never be able to do that because [he] ... wasn't even there to  


                      be able to see it.  [It is apparently undisputed that], at some  

                      point in time, Mr. Crawford was told ... to leave the house.  


                      The  question  is  when  that  happened.    Trevon  Brown's  

                      statement to the police is not  probative on that point.  I[t]  


                      can't establish the timing, so ... I'm denying [Crawford's]  

                      application [to introduce this evidence].  

                                                                   - 28 -                                                                2432

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

                    This  ruling  was  error.    Trevon's  statement  to  the  police,  if  believed,  

supported an inference that the altercation between Crawford and Brown took place right  

after Crawford yelled at his three children to get ready to leave the house.  The trial  

judge's analysis does not address whether there was other, more probative evidence  

available to prove this point.  Rather, the judge concluded that Trevon's statement could  


not be relevant on this point, because Trevon only heard the altercation through a wall.  


                    The fact that Trevon only heard the altercation through the wall, rather than  


observing it visually, was a fact that might affect the weight of the proposed evidence,  


but not its relevance.  People who hear things happen (rather than see them happen) can  


still testify about the timing of those events.   

                    Moreover, if (as Crawford suggests) the sequence of events described by  


Trevon  was  different  from  the  sequence  described  by  the  other  witnesses,  this  fact  


established that his out-of-court statement was the most probative available evidence on  


the point for which it was offered - because Crawford was trying to prove that the other  


witnesses  had  not  described  the  timing  of  events  accurately.    Assuming  there  was,  

indeed, no more probative evidence available on this particular point, then - given the  


trial  judge's  earlier  mistaken  ruling  that  Trevon  was  "unavailable"  for  purposes  of  

Evidence Rule 804 - the judge should have admitted the evidence and allowed the jury  


to decide what weight to give it.  

           Whether  the  trial  judge's  mistaken  rulings  concerning  Trevon  Brown  

          require the reversal of Crawford's convictions  

                    Our next task is to determine whether the trial court's erroneous rulings  


with respect to Trevon Brown require the reversal of Crawford's convictions.  For this  


purpose, we will assume that the trial judge violated Crawford's constitutional right of  


                                                             - 29 -                                                        2432

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

compulsory  process  when  the  judge  failed  to  take  steps  to  enforce  Trevon's  trial  

subpoena.  Thus, the test is whether the error is harmless beyond a reasonable doubt.  

                    With regard to the timing of the events leading up to Crawford's shooting  

of Brown, several witnesses gave testimony concerning these events.  

                    Kerri Nichols initially testified that, after Crawford yelled for his children  


to get ready to leave the house, Brown accused Crawford of going for his gun, and then  


Brown pushed Crawford down onto a couch.  But later in her testimony, Nichols gave  


a slightly different version:  she said that Brown did not push Crawford onto the couch  


until later , after Crawford started to talk about "mind control".  

                    Another witness, Darryl Nicholson, testified that Brown tackled Crawford  


onto the couch, but Nicholson did not remember Crawford telling his children to get  


ready to go, nor did he remember many other details of the incident.  

                    Crawford's  wife,  Marie  Huesties,  testified  that  Crawford  yelled  at  the  

children to get ready, and she then left the room to help them.  Huesties said that she  


could then hear Kerri Nichols screaming at Brown to stop, and telling Brown that she did  


not want the children to "see [Crawford] like that".  

                    Crawford himself testified that he was trying to talk to his sister (Nichols)  

about things that had happened when they were children, and that Brown interrupted and  


told  him  to  "shut  [his]  fucking  mouth",  and  then  Nichols  yelled  at  Brown  to  stop.  


Crawford testified that Brown walked outside, but then Brown came back into the house  


and he (Crawford) could sense that something was different - and that was when he  


yelled at his children to get ready to leave.  

                    Crawford testified that the next thing he remembered was Brown hitting  


him,  and  he  fell  back  onto  the  couch,  and  then  Brown  choked  him  until  he  was  


unconscious.  Crawford said he could hear Nichols yelling at Brown, and that he saw  


Nichols trying to pull Brown off.  

                                                            - 30 -                                                       2432

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

                    Crawford's oldest son, Kenneth, testified that he came out of a bedroom and  

saw Brown choking Crawford, while Nichols was screaming and trying to get Brown off  


of Crawford.  

                    Arguably,  Huesties's  and  Crawford's  testimony  -  that  the  altercation  


occurred soon after Crawford yelled at his children to get ready to leave - was more  


probative than the testimony that Trevon could have offered, because Trevon was not in  


the  room  with  Crawford,  Brown,  and  Nichols,  and  he  only  reported  what  he  heard  


through the wall.  But Huesties and Crawford had a significant motive to portray events  


in the light most favorable to Crawford, while Trevon did not.  (Trevon's father was the  


one who was killed.)  So on this particular point, Trevon's testimony was arguably more  


probative than Huesties's and Crawford's testimony.  

                    Even so, it is difficult to see how the absence of Trevon's testimony might  


have influenced the jury's verdict.   

                    Crawford's defense was that, when he shot Brown, he acted in self-defense  

and in a state of mental confusion because Brown had strangled him. The precise timing  


of the events we have been discussing - in particular, whether Brown became angry at  


Crawford after Crawford yelled to his children to put their coats on - was not important  

to Crawford's claim of self-defense.  Rather, the critical component of Crawford's self- 

defense       claim   was        his   assertion        that    Brown        strangled   him         to   the     point     of  

unconsciousness, thus causing him to react in a mental haze.   

                    Trevon was not in the living room with Crawford and Brown, and there is  


nothing  in  the  record  to  indicate  that  Trevon  would  have  been  able  to  testify  as  to  


whether Brown did in fact strangle Crawford, and whether (as Crawford claimed) this  

strangulation brought Crawford to the point of unconsciousness.  

                    Potentially, Trevon's testimony might have undermined Kerri Nichols's  

credibility as a witness; but this, too, seems doubtful.  Trevon's description of what he  

                                                           - 31 -                                                       2432

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

heard through the wall can easily be reconciled with Nichols's initial testimony that,  


right after Crawford yelled at his children to get ready to leave, Brown accused Crawford  


of pulling a gun, and then he pushed Crawford down onto the couch.  

                    We conclude that there is no reasonable possibility that the absence of  

Trevon's  testimony  affected  the  jury's  decision  in  this  case.    Thus,  the  trial  court's  

various  errors  with  respect  to  this  matter  do  not  require  reversal  of  Crawford's  



          The superior court's ruling that limited Crawford's direct examination of  


          two witnesses who were recalled to the stand during the defense case  

                    During the defense case, Crawford called two witnesses - Kerri Nichols  


and Darryl Nicholson - who had already testified during the State's case-in-chief.  

                    During  his  direct  examination  of  Kerri  Nichols,  Crawford  sought  to  


question  her  on  topics  that  were  within  the  scope  of  the  prosecutor's  earlier  direct  


examination (when Nichols testified during the State's case).  Crawford wanted to ask  


Nichols these questions because, by his own admission, he had forgotten to ask these  

questions during his earlier cross-examination of Nichols.  

                    The trial judge ruled that, because Nichols and Nicholson had both already  

testified during the State's case, and because Crawford had already had the opportunity  


to cross-examine these two witnesses on the topics covered during their earlier direct  


examination by the prosecutor, it would now be improper for Crawford to ask Nichols  


or Nicholson questions on any topic within the scope of their earlier direct examination.  


The judge limited Crawford's direct examination of these two witnesses to topics that  


either were new, or that arose only during their earlier redirect examination.  


                                                             - 32 -                                                        2432

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

                   The judge then invited Crawford to outline the specific questions that he  


wished to ask Nichols (the witness Crawford was examining at the time).  

                   With respect to most of Crawford's proposed questions, either the judge  


indicated  that  the  questions  were  proper,  or  the  prosecutor  stated  that  he  had  no  

objection.    However,  the  judge  refused  to  let  Crawford  question  Nichols  regarding  


certain topics.  In particular, the judge told Crawford that the following questions were  


within the scope of Nichols's earlier direct examination, and that it would therefore be  


improper for Crawford to:  

          *	       seek to elicit Nichols's admission that, when the police interviewed her, she  


                   did not volunteer the information that Crawford was walking toward her  

                   while he was shooting - that Nichols only made this statement in response  

                   to an officer directly asking her, "Was he coming towards you?"  

          *	       question Nichols concerning the grand jury testimony that she yelled at  

                   Nicholson to call 911; according to Crawford, this testimony was relevant  


                   to prove Nicholson's state of mind, by suggesting that Nicholson might  

                   have consciously hesitated to call 911, and that he might have had some  


                   motive for failing to do so immediately.   

          *	       question Nichols about why she was "stressed out" that Crawford and his  


                   family were coming over to her house on the night of the shooting.  

                   In addition, the trial judge limited Crawford's direct examination of the  

second witness, Darryl Nicholson, in one respect.   

                   This issue arose because, during Crawford's earlier cross-examination of  

Nicholson  (during  the  State's  case),  Crawford  questioned  Nicholson  about  some  

apparent inconsistencies between his statements to the police, his grand jury testimony,  


and his testimony on direct examination at trial - inconsistencies as to (1) whether  


Crawford pulled out his gun before or after Brown tackled him, and (2) Brown's reasons  


                                                          - 33 -	                                                     2432

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

for walking outside just as Crawford was leaving the house.  When Crawford cross- 

examined  Nicholson  about  these  inconsistencies,  Nicholson  attributed  them  to  his  


intoxication on the night of the shooting.  Afterwards, the prosecutor asked Nicholson  

(during redirect examination) if he had a tendency to embellish things when he was  

intoxicated, and Nicholson said "yes."  

                    When Crawford called Nicholson as a witness during the defense case,  

Crawford asked him a series of questions about this assertion that he embellished things  


when he was intoxicated.  The prosecutor did not object to any of these questions, but  


the  trial  judge  cut  Crawford  off,  sua  sponte .    The  judge  mistakenly  declared  that  

Crawford's questions were "beyond the scope of the redirect."  Crawford, however, did  


not challenge the trial judge's ruling, or point out that his questions were squarely related  


to testimony that Nicholson gave on redirect examination.  Instead, Crawford moved on  


to a different topic.  

                    On appeal, the State attempts to justify these limitations on Crawford's  

examination  of  the  two  witnesses  by  pointing  out  that  judges  have  considerable  

discretion to order and restrict the presentation of evidence to prevent litigants from  


repeatedly  questioning  witnesses  regarding  topics  on  which  they  have  already  been  

questioned. 10  



                    It is true that trial judges have substantial discretion "to preclude repetitive  


and unduly harassing interrogation."  Marron v. Stromstad , 123 P.3d 992, 1010 (Alaska  

     10   See Alaska Evidence Rule 403, which authorizes judges to exclude relevant evidence  

"if its probative value is outweighed by ... considerations of undue delay, waste of time, or               

needless presentation of cumulative evidence", and Alaska Evidence Rule 611(a), which  

requires judges to "exercise reasonable control over the mode and order of interrogating  

witnesses  and  presenting  evidence  so  as  to  (1)  make  the  interrogation  and  presentation  

effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3)       

protect witnesses from harassment or undue embarrassment."  

                                                             - 34 -                                                         2432

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

2005).  But here, the trial judge did not simply forbid Crawford from repeating questions  


he had earlier put to Nichols and Nicholson on cross-examination (when they testified  


during the State's case-in-chief).  Rather, the judge prohibited Crawford from asking  


questions on topics that he might have raised (but did not) when he cross-examined the  


witnesses earlier.  

                    The judge did not find that Crawford's proposed questions were irrelevant,  


improper, misleading, repetitive, harassing, or the like.  Rather, the judge relied solely  

on the theory that Crawford had somehow forfeited his right to ask these questions  

because he neglected to take advantage of an earlier opportunity to raise these topics  

when he cross-examined the witnesses during the State's case.  This forfeiture theory has  

no basis in law.  

                    Nevertheless, we conclude that these errors were harmless.  With respect  


to  the  specific  questions  that  Crawford  unsuccessfully  sought  to  ask  Nichols,  these  

questions did not concern issues that were central to the case, and they had no significant  


impeachment value. Indeed, one of Crawford's proposed questions (Crawford's attempt  


to elicit testimony that Nichols yelled at Nicholson to call 911) appears to have been  

aimed at a completely speculative purpose.  And with respect to Nicholson's inconsistent  

statements, his self-admitted tendency to "embellish" when he was intoxicated, and his  


level of intoxication at the time in question, Crawford was able to apprise the jury of  

these things, both in his cross-examination of Nicholson during the State's case-in-chief  


and in his direct examination of Nicholson during the defense case (before the trial judge  


cut him off).  

                    For these reasons, we conclude that the trial judge's erroneous rulings did  


not rise to the level of infringing Crawford's right of confrontation, nor did these rulings  

appreciably affect the verdict.  

                                                           - 35 -                                                       2432

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

          The  superior  court's  refusal  to  allow  Crawford  to  introduce  certain  

          evidence to impeach Nichols and Nicholson  

                   Crawford proposed to impeach Kerri Nichols by presenting the testimony  

of Nichols's adoptive father, Martin Nichols.  According to Crawford, the senior Nichols  


would testify that Kerri had a character trait for creating conflict.  Crawford argued that  


this  character  evidence  was  relevant  to  support  Crawford's  theory  that  Kerri  had  

knowingly invited Crawford and Brown to her home for the purpose of orchestrating the  

conflict that led to the homicide.  

                   The trial judge ruled that the proposed evidence was not admissible under  


Evidence Rule 608(a), which states that the credibility of a witness may be attacked by  


opinion  evidence,  but  only  when  that  opinion  refers  to  the  witness's  character  for  

truthfulness or untruthfulness.   

                   Arguably, Crawford was offering Martin Nichols's testimony for a different  

purpose:  not to attack Kerri's credibility as a witness, but rather to establish her actions  


on the night of the homicide (her alleged plan to bring Crawford and Brown together so  


that a conflict would erupt).  But if the proposed character evidence was offered for this  


purpose,  it  was  barred  by  Evidence  Rule  404(a).    Rule  404(a)  codifies  the  general  

principle  that  evidence  of  a  person's  character  is  not  admissible  if  it  is  offered  as  

circumstantial evidence to prove that the person acted true to character on a particular  


                   Moreover, as the prosecutor pointed out when he opposed this evidence,  


even if it was true that Kerri Nichols invited Crawford and Brown to her home in hopes  


that they  would argue or fight, this was not relevant to the central issue litigated at  


Crawford's trial:  whether Crawford acted in self-defense when he shot Brown.   

                                                          - 36 -                                                      2432

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

                    For these reasons, we uphold the trial judge's decision to preclude this  


                    With respect to Crawford's proposed impeachment of Darryl Nicholson,  

Crawford wished to impeach Nicholson by playing the video recording of Nicholson's  


interview with the police shortly after the homicide; Crawford asserted that this video  


would show that Nicholson was not as intoxicated at the time of the homicide as he  



                    Before ruling on Crawford's request, the trial judge reviewed the video.  


Based  on  this  review,  the  trial  judge  concluded  that  the  video  would  provide  a  

misleading view of Nicholson's level of intoxication, because Nicholson was sitting  

down for most of the interview (thus saving him from having to stand and maintain his  


balance).  The judge also concluded that the video recording was not good enough to  


allow the jurors to assess the two main indicia of intoxication that the police interviewer  


relied  on  when  he  asserted  that  Nicholson  was  intoxicated:    Nicholson's  watery,  

bloodshot eyes and his odor of alcohol.  In addition, the judge concluded that it would  


be difficult for the jurors to disregard the content of the statements Nicholson made on  

the video, and to focus solely on the indicia of Nicholson's sobriety or intoxication.  

                    These were all reasonable concerns, and we therefore conclude that the  

judge did not abuse his discretion when he refused to allow Crawford to play the video  

for this purpose.   

                    Crawford also asked the trial judge to let him impeach Nicholson in another  

fashion - by introducing evidence that, eleven years before, Nicholson's ex-wife had  


accused him of both physically and sexually assaulting her.  Crawford argued that this  


evidence was relevant to show that Nicholson was "capable of ... perverted criminal acts"  


- thus supporting  Crawford's theory that, on the night of the homicide, Nicholson  


                                                          - 37 -                                                      2432

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

instructed Brown to attack and restrain Crawford so that he (Nicholson) could                                                then  

sexually assault Crawford's children.  

                    Alaska  Evidence  Rule  404(b)(1)  bars  the  admission  of  evidence  of  a  

person's  other  bad  acts  when  the  evidence  is  offered  to  prove  (1)  that  the  person  


characteristically  engages  in  bad  acts  of  that  type,  and  (2)  that  the  person  therefore  

probably          acted       true     to     character         during        the      episode        being       litigated. 11  


Crawford's proposed evidence was prohibited by this rule.  

                    Also,  the  trial  judge  ruled  that  even  if  it  was  true  that  Nicholson  had  

sexually assaulted his ex-wife eleven years before, there was no reasonable connection  


between (1) the character trait arguably established by that earlier assault and (2) the  

events  that  Crawford  alleged  were  occurring  in  the  residence  on  the  night  of  the  


homicide.  In his brief to this Court, Crawford does not discuss this ruling or attempt to  


rebut it.  

                    For these reasons, we uphold the trial judge's resolution of this issue.  

          The trial judge's refusal to instruct the jury on defense of others  

                    The  trial  judge  refused  Crawford's  request  to  instruct  the  jury  on  the  


defense of "defense of others", see AS 11.81.340, and the judge likewise refused to allow  


Crawford to argue to the jury that he killed Brown while acting in defense of his wife and  



                    Crawford's proposed defense is defined in AS 11.81.340.                                      This statute  


declares that a defendant is justified in using force upon another person "when and to the  


extent the [defendant] reasonably believe[d] it [was] necessary to defend a third person".  


     11   See  Howard v. State , 239 P.3d 426, 430 (Alaska App. 2010).  

                                                             - 38 -                                                         2432

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

The statute further explains that this defense is established if, under the circumstances  


as  the  defendant  reasonably  believed  them  to  be,  the  third  person  would  have  been  

justified in using that same degree of force in self-defense.   

                    Under the self-defense statute, AS 11.81.335, a person is entitled to use  

deadly force to protect themself from kidnapping.  Relying on this provision of the self- 

defense statute, Crawford argues that there was sufficient evidence to support a jury  


verdict in his favor on the issue of whether he reasonably believed that his wife and  

children were in danger of being kidnapped by Brown.  Thus, according to Crawford,  

his wife and children would have been justified in using deadly force against Brown to  


defend themselves - and, under the "defense of others" provision of AS 11.81.340,  

Crawford would likewise have been justified in using deadly force against Brown.  

                    But Crawford's theory of imminent kidnapping was not based on any action  

that Brown took against Crawford's wife and children.  Rather, Crawford's theory of  

imminent kidnapping was based on the fact that Crawford had the keys to the family  


vehicle on his person.  Crawford argued that, because he had the keys, Brown subjected  


Crawford's wife and children to unlawful restraint when Brown held Crawford down on  


the couch.  

                    The trial judge ruled that this was not a valid theory of kidnapping - and  


that, in the absence of any other evidence that Brown subjected Crawford's wife and  

children  to  a  restraint  or  a  threat  of  restraint,  Crawford  was  not  entitled  to  a  jury  


instruction on "defense of others", nor was Crawford entitled to argue this theory of the  


case to the jury.  

                    On appeal, Crawford argues that there was some evidence from which the  


jury could have concluded that he reasonably feared that deadly force was necessary to  


protect his family from kidnapping.  Crawford points to the evidence (1) that Brown  


assaulted him right after he yelled at his children to get ready to leave the residence;  


                                                           - 39 -                                                       2432

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

(2)  that  Kerri  Nichols  had  lost  control  of  events  and  could  not  stop  Brown  from  


strangling Crawford; and (3) that Crawford was disoriented and was having difficulty  

locating his family and assisting them to get in the van so they could leave.  

                    But these assertions, even if true, do not establish a kidnapping as that  


offense is defined in AS 11.41.300(a).   

                    More importantly, the primary difficulty in Crawford's "defense of others"  


claim is that, when Crawford testified at trial, he never said that he was afraid his family  


would be kidnapped.  Instead, Crawford testified that Brown strangled him to the point  


where he was confused and barely conscious - and that, as a consequence, he feared for  


his own life.  

                    On direct examination, Crawford testified:  


                              Crawford:  I [saw Brown] coming out, and ... I just  

                    remember  thinking  that,  you  know,  I'm  not  -  I'm  not  

                    awake.  I'm not - I can't stand up.  I can't really see things.  


                    I can't breathe.  And if he gets his hands around my neck  


                    again, I'm done [for], and that's probably what he's coming  


                    to do.  

Crawford gave similar testimony when he was cross-examined by the prosecutor:  


                              Crawford:  [T]he door's open, and he's coming out to  


                    do me harm, in my mind, because ... I'm outside trying to get  


                    away, [and] he [had] just done me harm, [and] he's coming  


                    to  do  it  again.    Yes.    I  fired  in  his  direction,  and  I  never  

                    consciously acquired him as a target [or] actually saw that  

                    happen.  I know he was coming at me, and I know I shot in  


                    his direction.  

                    For  these  reasons,  we  agree  with  the  trial  judge  that  the  evidence  at  

Crawford's trial did not support a jury instruction on defense of others.   

                                                             - 40 -                                                        2432

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

          The purported error in one of the jury instructions on self-defense  

                    Crawford argues that one of the jury instructions on self-defense improperly  

defined the circumstances in which the law would consider his conduct to be reasonable.  

Here is the instruction in question; we have italicized the portion of the instruction that  


Crawford objects to:  


                              When  these  instructions  use  the  term  "reasonable  

                    person"  or  "reasonably  believes",  they  mean  a  reasonable  


                    person not affected by alcohol or drugs, and a reasonable,  


                    mentally healthy person whose thinking is not influenced by  


                    mental  difficulties  that  skew  or  affect  his  ability  to  form  

                    reasonable thought processes or act in a reasonable fashion.  

                              This  does  not  mean  that  a  person  affected  by  the  


                    difficulties listed above may not use force in defense of self,  

                    but only that the reasonableness of the person's action must  


                    be tested by the standard of what a non-affected person would  


                    have believed was reasonable under the circumstances.  

                              Mental difficulties would not include a person's ability  


                    to form reasonable thought processes as a result of  losing  

                    consciousness involuntarily.  


                    At  trial, Crawford  argued  that  the  second  paragraph  of  this  instruction  


should have asked the jury to determine what a reasonable person could have believed  

was reasonable under the circumstances (as opposed to would have believed).   

                    The  trial  judge  ruled  that  "would"  was  the  proper  word,  since  the  

"reasonable person" test is an objective one. The judge's ruling conforms to the wording      

of the self-defense statute, and to the case law interpreting that statute.  See, for instance,  

the Alaska Supreme Court's description of the test in  Weston v. State, 682 P.2d 1119,  

1121 (Alaska 1984):  to be justified in using deadly force in self-defense, a defendant  

                                                            - 41 -                                                       2432

----------------------- Page 42-----------------------

must have actually believed that deadly force was necessary to protect himself, and the  

defendant's belief "must be one that a reasonable person would have held under the  


circumstances".  (Emphasis added)  

                    On appeal, Crawford does not actually renew his challenge to the wording  


of the instruction.  Instead, he raises a related but different argument:  he contends that  


the prosecutor mischaracterized the law of self-defense in his summation - by telling  


the jury that, for a killing  to be justified based on self-defense, "the defendant must  


actually believe that there was imminent use of unlawful force against him" and "the  

reasonable person must reach the same conclusion."  

                    Crawford argues that the prosecutor's formulation was wrong - that the  


real question is whether a reasonable person could have reached the same conclusion.  

                    Crawford did not object to the prosecutor's argument at the time, so his  


claim is not preserved.  Moreover, the prosecutor was merely paraphrasing the law stated  


in the jury instruction.  And to the extent that the prosecutor's wording might have  


suggested something slightly different from the test contained in the jury instructions, we  


note that the jurors were told that, regardless of the arguments of counsel, they were  

required to decide the case in conformity with the court's instructions. 12  


                    For these reasons, we reject Crawford's claim of error.  


          Crawford's claim that the trial judge improperly restricted his voir dire  

          examination of the prospective jurors  

                    Crawford argues that the trial judge impermissibly restricted his voir dire  

of the prospective jurors regarding their potential bias against individuals who habitually  


     12   Jury Instruction No. 50 told the jurors that "arguments of counsel, if they depart from   

the facts or from the law, should be disregarded."   

                                                            - 42 -                                                       2432

----------------------- Page 43-----------------------


carry guns for self-defense outside the home.  This issue arose when, during voir dire,  

Crawford asked one of the jurors:  



                              Crawford:  So if you heard evidence that I carried a  


                    firearm, and it had a high capacity magazine, and I'm not in  


                    law  enforcement,  I  wasn't  at  the  shooting  range,  I  was  

                    carrying it for my own personal protection and that of my   


                    family, with no permit, would that give you some pause -  

                    [would it make you feel] some possible prejudice?  


The prosecutor objected to Crawford's question, and the judge sustained the objection:  



                              The Court:  [T]here's no way a juror can answer that  


                    fairly without hearing all the evidence ... in the case.  And  

                    you're asking them to prejudge the facts [of] the case, and  

                    that's not permitted.  


After the judge issued this ruling, Crawford continued to question the prospective jurors  


about how they felt in general about people carrying guns, particularly guns with high- 

capacity magazines.  


                    When the judge later asked the parties if they had any challenges for cause,  

Crawford complained that, because the judge had restricted his voir dire, he had not  

developed an adequate record to support a challenge for cause - but that, in any event,  


he would offer challenges to four jurors (Jurors Sa., C., Sw., and W.), and "maybe [Juror  


                    In response to Crawford's complaint about the earlier ruling, the judge  

clarified (at some length) that Crawford was only restricted from asking questions that  

invited the jurors to prejudge the facts of the case - and that there was a "long line" of  


other questions that Crawford was free to ask (when voir dire continued) to elicit any  

bias that the prospective jurors might have about guns or people who carry them.  

                                                            - 43 -                                                       2432

----------------------- Page 44-----------------------

                     The judge denied Crawford's challenges for cause - but Crawford does   

not challenge those rulings on appeal.  

                     Crawford then used peremptory challenges to excuse all but one of the  


jurors who had caused him concern.   

                     (The  unchallenged  juror  was  Juror  L..                        During  jury  selection,  Juror  L.  


stated:  "I question the reason for high-capacity magazines in places other than [firing]  


ranges or, you know, battle zones.  But they're legal to own and ... anybody having one,  


I would not hold it against them.")  


                     Crawford does not claim any error in the continued voir dire that resumed  


the following week.   

                     A trial judge has broad discretion to determine the scope of questioning on  


voir dire, 13  

                   and questions that invite the prospective jurors to prejudge the facts of the  

case are not proper.  Moreover, it is unclear what prejudice Crawford is now asserting  


from the trial judge's refusal to let him ask the question we quoted above.  Crawford  

used peremptory challenges to excuse all but one of the jurors that expressed any concern  

about gun ownership, and the juror that Crawford did not challenge (Juror L.) stated that  


he "would not hold it against [a person]" if the person carried a gun with a high-capacity  


magazine.  We note that Crawford does not argue that he was left with an insufficient  


number of peremptory challenges when voir dire resumed.  

                     The test for determining whether a voir dire examination was adequate to  


detect  juror  bias  is  whether,  "considering  the  totality  of  the  questions  permitted,  ...  

counsel gain[ed] enough specific information to intelligently exercise challenges for  


      13   Bachner v. Pearson , 479 P.2d 319, 335 (Alaska 1970).   

                                                                - 44 -                                                            2432

----------------------- Page 45-----------------------


cause and enough general information to exercise peremptory challenges."                                                     The voir  

dire in Crawford's case, viewed as a whole, demonstrates that Crawford had enough   

information about the prospective jurors' attitudes toward guns to intelligently exercise     

his challenges for cause and his peremptory challenges.   

                     For  these  reasons,  we  reject  Crawford's  argument  that  the  trial  judge  


improperly restricted his voir dire.  

           The trial court's decision to admit evidence that Crawford had several  

          firearms in his vehicle  

                     At trial, the State wished to introduce evidence that Crawford was carrying  


two guns, and that he had several other guns in his vehicle at the time of the homicide.  


(All  told,  the  State  ultimately  introduced  evidence  of  six  handguns,  as  well  as  

photographs of long guns.)   

                      Crawford objected to this proposed evidence, arguing that the only relevant  


gun was the one that he used when he shot Brown.  With particular regard to the guns  


in his vehicle, Crawford asserted that these guns were in the vehicle only because he had  


packed the vehicle with belongings in anticipation of his impending move to Fairbanks.  


                     But the prosecutor pointed out that Crawford's wife had testified that, after  

Crawford transported his family to Fairbanks, he intended to return to Anchorage to kill  


the  people  who  he  believed  had  molested  his  children.    The  prosecutor  argued  that  

Crawford's possession of so many guns (both on his person and in his vehicle) was  


relevant to the question of his homicidal state of mind - even if Brown and the other  


people in the apartment that night were not Crawford's original targets.  

      14   Bolhouse v. State         , 687 P.2d 1166, 1172 (Alaska App. 1984); see also  Evans v. State ,  

unpublished, 1994 WL 16196663, at *1 (Alaska App. 1994).  

                                                                 - 45 -                                                            2432

----------------------- Page 46-----------------------

                    The trial judge allowed the State to introduce the evidence of Crawford's  


guns.  The judge concluded that it was up to the jury to decide what inference, if any,  


should be drawn from Crawford's possession of all these weapons, and each party could  


therefore argue their theory of the evidence to the jury.  

                    Having  reviewed  the  record,  we  conclude  that  the  judge's  ruling  with  

respect  to  the  guns  on  Crawford's  person  was  not  an  abuse  of  discretion,  but  the  


admission of the evidence pertaining to the guns in Crawford's vehicle presents a closer  

question.  Nevertheless, we conclude that even if the judge's ruling on this latter point  


was  error,  Crawford  has  not  shown  that  the  judge's  decision  unfairly  prejudiced  

Crawford's defense.  

                    We note in particular that, during the defense case, Crawford testified about  


his longstanding interest in guns, and the fact that he had habitually carried a gun since  

he was twenty-one years old.  Crawford also elicited his wife's testimony that she was  


the owner of two of the handguns seized by the police, and that the boxes of guns and  


firearm accessories found in their vehicle had recently been purchased by Crawford and  


herself - some to sell at gun shows, and others to keep.  Crawford's wife also testified  


(during the State's case-in-chief) that she and Crawford had been packing up to move  

to Fairbanks in the days preceding the shooting.  

                    The prosecutor, in summation, argued that Crawford's homicidal state of  


mind was revealed by the guns that Crawford was carrying  on his person, as well as  

Crawford's belief that his children were being molested.  The prosecutor argued that  

even if Crawford somehow believed that it was necessary for him to shoot Brown to  


protect himself, that belief was not reasonable because Crawford was "armed to the  


teeth" - a reference to the guns in Crawford's immediate possession.  

                    In  sum,  we  conclude  (1)  that  the  evidence  pertaining  to  the  guns  that  

Crawford was carrying on his person was relevant to the issues before the jury; (2) that  


                                                           - 46 -                                                       2432

----------------------- Page 47-----------------------

the evidence pertaining to the other guns in the vehicle presents a closer question; but  


(3) Crawford was given a fair opportunity to offer testimony to explain his possession  


of these numerous firearms; and (4) the prosecutor made a legitimate argument as to why  


Crawford's possession of the weapons on his person was relevant to the question of  


whether Crawford reasonably believed that it was necessary to shoot Brown.  

                    We therefore hold that any error in the trial judge's ruling was harmless.  

          The trial judge's rulings that two of Crawford's young children were not  


          competent to testify  

                    Under Alaska Evidence Rule 601, all persons are presumed to be competent  

to testify as witnesses unless the court affirmatively finds either (1) "[that] the proposed  

witness  is  incapable  of  communicating  concerning  the  matter  [at  issue]  so  as  to  be  

understood by the court and jury", or (2) "[that] the proposed witness is incapable of  


understanding the duty of a witness to tell the truth."  

                    In the context of a young child, our supreme court has said that this rule  


requires a judge to "ascertain that the child is capable of receiving just impressions of the  


facts of which he or she is to testify[,] and [is capable] of relating them truly, in addition  


to understanding the necessity of testifying truthfully."  Sevier v. State, 614 P.2d 791,  

794 (Alaska 1980).   

                    It is important to note that both Evidence Rule 601 and the Sevier decision  


speak of a child's capacity to testify about events.  Evidence Rule 601 does not require  

- or allow - a judge to rule that a proposed witness is incompetent based on the  

judge's conclusion that the witness is  unwilling to testify about events.   

                    Before Crawford's trial, the trial judge interviewed all three of Crawford's  


young sons - Kenneth (age six), Joseph (age five), and Alex (age four) - to determine  


                                                           - 47 -                                                       2432

----------------------- Page 48-----------------------

whether they were competent to testify.  Ultimately, the judge ruled that only the eldest  


child, Kenneth, was competent to testify.  

                    Following this ruling, Crawford told the judge he was considering filing a  


petition for review, or a motion for reconsideration of the judge's decision. In response,  


the judge told Crawford that he would not reconsider his ruling with respect to the four- 


year-old, Alex, because he was "just too young to understand [the role of a witness], and  


[he] gets confused".  

                    However, the judge told Crawford that he was willing to interview the five- 


year-old middle child, Joseph, one more time just before trial, and then reconsider the  


issue of Joseph's competency.  Crawford agreed to this suggestion.  

                    Later,  when  Crawford  reminded  the  trial  judge  that  he  had  agreed  to  


reassess Joseph's competency, Crawford made no mention of having the judge interview  


four-year-old Alex again.  And when the judge conducted his second interview with  


Joseph, Crawford made no request to have the judge reconsider his earlier ruling that  

Alex was not competent to testify.  

                    For these reasons, we conclude that Crawford abandoned any objection to  


the judge's ruling with respect to Alex, and we therefore turn to the judge's ruling with  


respect to Joseph.  

                    During the second competency interview with Joseph (which took place  


during  Crawford's  trial),  both  the  trial  judge  and  Crawford  himself  asked  Joseph  a  


number of questions in an attempt to assess the boy's competency.  Joseph answered  

most (but not all) of these questions.  But with very few exceptions, Joseph's answers  


were monosyllabic "yes" and "no" answers.  Joseph gave his longest answer - "I didn't  


want to" - when Crawford asked Joseph if he had  earlier expressed willingness to  


"[talk] on a camera".  

                                                             - 48 -                                                         2432

----------------------- Page 49-----------------------

                    At  the  conclusion  of  this  second  interview,  the  trial  judge  found  (and  


Joseph's answers demonstrate) that Joseph understood the difference between the truth  


and a lie - although we note that the trial judge never made a finding on the separate  


issue that is crucial for purposes of Evidence Rule 601:  whether Joseph understood the  


duty to tell the truth.  

                    But  despite  the  fact  that  the  judge  was  satisfied  of  Joseph's  ability  to  

distinguish the truth from a lie, the trial judge again ruled that Joseph was not competent  


to testify.  The trial judge  stated, "I don't have ... confidence that, when [Joseph] is  


communicating with us, ... he is telling us ... everything that might be there, or even [that  

he] is going to be answering the questions [at all]."  

                    Crawford challenges this ruling on appeal.  

                    We acknowledge that the trial judge's ruling on this issue is problematic.  

It appears that the judge ruled that Joseph was incompetent, not because the boy was  

unable to meaningfully communicate his knowledge to the court and jury, but rather  

because he was unwilling to communicate his knowledge to the court and jury.  Here are  

more details of what the judge said:  


                              The Court:  Joey didn't want to talk, and he chooses  

                    not  to  talk  even  though  he  can  answer.    I  don't  think  it's  

                    anything about capability.  [And] I don't think - as ... I said  


                    before,  I  don't  think  [he's]  [un]able  to  understand  the  


                    difference between the truth and a lie.  ...  [H]e's a smart kid.  


                    But [whether he is] shy, [or] whatever the case may be, he  

                    just doesn't want to answer the questions.   ...  His choice,  


                    basically, is he doesn't [want to] say anything.  

                              .  .  .  

                              So  ...  I  cannot  find  that  he  would  be  competent  to  


                    testify before the jury.  ...  I don't feel confident that he will  


                                                             - 49 -                                                        2432

----------------------- Page 50-----------------------

                    be confident [enough] to testify in front of a jury, whether we       

                    do it [via] closed circuit TV or not.  


                    As we have explained, Evidence Rule 601 speaks of a witness's                                    capacity  

to answer questions in a manner that allows the court and the jury to understand the  

witness's answers; the rule does not speak of a witness's willingness to answer questions.  


Indeed, there are many witnesses who, for one reason or another, are unwilling to answer  


the questions posed to them.  This does not make them incompetent to be witnesses.  

                    Even  though  the  Sevier  decision  declares  that  trial  judges  have  "great  

discretion in determining the competency of a child to testify", 15 judges must apply the  

correct legal test for competency when they make this determination.  Here, Crawford's  

trial judge expressly found that Joseph's failure to meaningfully communicate was the  


result of his unwillingness, not any incapacity.  

                    We therefore conclude that the judge's ruling was error.  However, we also  


conclude that this error was harmless.  

                    As we have explained, Crawford's defense to the homicide charge hinged  


on the assertion that the victim, Brown, choked Crawford to the point where Crawford  


lost his normal mental capacity, and then Crawford shot Brown a few minutes later in a  


state of mental confusion.   

                    Crawford's  assertion  that  Brown  choked  him  was  corroborated  by  the  


testimony of Crawford's wife, Marie Huesties, and his oldest son, Kenneth Crawford.  

                    Huesties (testifying for the State) told the jury that Brown and her husband  


got into an argument in the living room while their three sons (Kenneth, Joseph, and  

Alex) were playing in a bedroom.  In the middle of this argument, Crawford yelled,  


"We're going to leave," so Huesties went to the bedroom to get the three children.   

     15   Sevier, 614 P.2d at 794.  

                                                             - 50 -                                                        2432

----------------------- Page 51-----------------------

                    While  Huesties  was  helping  the  children  put  on  their  coats  and  boots,  

Huesties could hear some kind of altercation going on in the living room, with Kerri  

Nichols screaming at Brown.  Huesties testified that she hesitated to take the children  


into the living room, because she was scared.  But she finally took their hands and led  

them outside the house - going through the living room on their way out.  According  


to Huesties, as they passed through the living room, she saw Brown holding Crawford  

by the coat and "jerking him around" by the collar.  Crawford wasn't doing anything in  


response:  his arms were by his side, his eyes were half-open, and he looked "out".  

                    Huesties testified that the children were crying as she led them outside to  


the  car.     When  they  reached  the  car,  Huesties  realized  that  it  was  locked,  and  that  


Crawford  had  the  keys.    Crawford  came  out  of  the  house  a  few  moments  later  and  

unlocked the car.  Huesties testified that Crawford did not sound like himself.  Then  


someone came out of the house and yelled, "Hey, don't forget ... " - at which point,  


Crawford  pulled  a  gun  and  started  shooting.    Crawford  paused,  and  then  he  started  

shooting again.  When Crawford was done shooting, they all piled into the van, and  


Crawford drove away.  

                    Kenneth Crawford (testifying for the defense) corroborated his mother's  

account of these events (as just described), except that he was more emphatic about  

Crawford's being choked.  Kenneth testified that when he and his two brothers and his  


mother passed through the living room on their way out of the house, Brown was not just  


holding Crawford by the collar; rather, Brown was actively choking Crawford - both  


with his hands and with the crook of his arm.  

                    Given this testimony, and given the fact that Crawford made no offer of  


proof that Joseph could add anything of substance to the testimony given by his mother  


and his brother, we conclude that even if the trial judge should have allowed Joseph to  


take the stand during the defense case, that error was harmless.  

                                                           - 51 -                                                       2432

----------------------- Page 52-----------------------

                             In a separate but related argument, Crawford argues that the trial judge's   

ruling on Joseph's competence was improperly motivated by a desire to save the court   

system the expense of bringing Joseph to court.  But at the time of the judge's ruling,   

Joseph was already in Anchorage and was available to testify.  There was no money at     


              Should the trial judge have recused himself?  

                             Before trial, Crawford asked Superior Court Judge Eric Aarseth to recuse   

himself, arguing that the judge had displayed actual bias against Crawford or, at least,     

an appearance of bias.  Judge Aarseth denied Crawford's motion, and Judge Aarseth's  

decision was immediately reviewed by Superior Court Judge Philip Volland. 16  



Volland upheld Judge Aarseth's decision, and thus Judge Aarseth remained Crawford's  

trial judge.  

                             On appeal, Crawford renews his contention that Judge Aarseth should have  

recused himself.  He argues that Judge Aarseth consistently violated his constitutional  

rights   and   exhibited   "a   demeanor   that   [was]   the   epitome   of   arbitrariness   and  


capriciousness."  More specifically, Crawford asserts that Judge Aarseth "attack[ed]"  

him when he inquired into jurors' specific prejudices during voir dire, and he "exploded  

into angry yelling" when Crawford complained that his standby counsel had failed to  

subpoena his witnesses.  

                             Under AS 22.20.020(a)(9), a judge is forbidden from acting in any matter  

"in which ... the [judge] feels that, for any reason, a fair and impartial decision cannot be  


given."  In addition, Canon 3E(1) of the Alaska Code of Judicial Conduct requires judges  


       16     This interlocutory review by a second judge is expressly required by AS 22.20.022(c).       

                                                                                       - 52 -                                                                                   2432

----------------------- Page 53-----------------------

to disqualify themselves in "[any] proceeding in which the judge's impartiality might  

reasonably be questioned".   

                      As this Court explained in Phillips v. State , 271 P.3d 457, 466-67 (Alaska  


App. 2012), Alaska case law and statutory law is conflicting on whether a judge can be  


removed  from  a  case  against  their  will  on  this  second  ground,  "appearance  of  


impropriety".    But  as  we  did  in Phillips ,  we  will  decide  Crawford's  case  under  the  


assumption that Alaska law mandates disqualification of a judge when the circumstances  


give rise to a reasonable appearance of bias, even when there is no proof that the judge  


is actually biased.  

                      As to what sort of appearance of bias will require a judge's disqualification,  


we note that the Comment to Alaska Judicial Canon 2A declares that the test is "whether  


the [judge's] conduct would create in reasonable minds a perception that the judge's  

ability to carry out judicial responsibilities with integrity, impartiality, and competence  


is impaired." 17  



                      Although Alaska Judicial Canon 3(B)(4) requires judges to be "patient,  

dignified,  and  courteous  to  litigants",  judges  are  generally  not  required  to  remove  


themselves from a case simply because they have made remarks that are critical of, or  


even hostile to, an attorney or a litigant.                          Moreover, a judge's adverse rulings are not  


a ground for disqualification unless the party moving for disqualification shows that the  



judge's rulings were the result of personal bias developed from a non-judicial source.  

      17   Quoted and applied in State v. Dussault, 245 P.3d 436, 442 (Alaska App. 2011).  

      18   Hanson v. Hanson , 36 P.3d 1181, 1183-87 (Alaska 2001) (relying upon and quoting         

Liteky  v.   United  States ,  510  U.S.  540,  555-56;  114  S.Ct.  1147,  1157;  127  L.Ed.2d  474  


      19   Nelson v. Jones , 781 P.2d 964, 972 (Alaska 1989).  

                                                                 - 53 -                                                            2432

----------------------- Page 54-----------------------

                   Crawford  claims  that  Judge  Aarseth  verbally  attacked  him  during  jury  


selection.  The record does not support this claim.  Crawford also asserts that the judge  


called him "selfish", and that the judge declared that Crawford had a "mental defect" and  

a "borderline mental illness".  But the transcript shows that the judge did not say these  


things; these are Crawford's personal interpretations of the judge's remarks.     

                   It is true that, in one pre-trial hearing, when Crawford complained that his  


standby  counsel  had  refused  to  issue  subpoenas  for  certain  defense  witnesses  that  

Crawford wanted, Judge Aarseth apparently lost his temper and raised his voice when  

Crawford refused to accept the judge's resolution of this issue.  But this exchange took  


place outside the presence of the jury and, while it demonstrated the judge's frustration,  


it did not establish that the judge had a personal bias against Crawford arising from a  

non-judicial source.  

                   We acknowledge that, at times, Judge Aarseth gave the appearance of being  

hostile toward Crawford's decision to proceed pro se .  The judge repeatedly expressed  

his displeasure with this decision, up until the point where the judge ruled that Crawford  

was not competent to represent himself - a ruling that this Court overturned on petition  

for review.  But Crawford has failed to establish that the judge acted from any personal  


bias, or that the judge's statements and actions on this issue gave rise to an appearance  


of bias that warranted Judge Aarseth's disqualification from Crawford's case.  

          Crawford's post-verdict motion for a new trial  

                   On May 9, 2010 - three months after the jury found Crawford guilty of  

second-degree murder and various other offenses - Crawford filed a motion for a new  


trial.  In his motion, Crawford alleged that he was entitled to a new trial on five grounds.  

                                                          - 54 -                                                     2432

----------------------- Page 55-----------------------

                    These five grounds  were:  (1) that Crawford was unable to adequately  


prepare his defense to the charges without the assistance of expert witnesses and an  

investigator (at public expense); (2) that the judge should have required Trevon Brown  


to  appear  as  a  witness  at  trial;  (3)  that  the  judge  erred  when  he  found  that  two  of  

Crawford's sons, Joseph and Alexander, were not competent to be witnesses; (4) that  

when Crawford called Kerri Nichols and Darryl Nicholson as witnesses in the defense  

case,  the  judge  should  not  have  restricted  Crawford's  direct  examination  of  these  

witnesses by forbidding Crawford from raising topics that he might have raised when he  


cross-examined these witnesses during the State's case-in-chief; and (5) that the judge  


erred  when he declined to instruct the jury that Crawford's shooting of Brown was  


potentially  justified  as  an  act  taken  in  "defense  of  others"  (under  the  theory  that  


Crawford was protecting his wife and children from kidnapping).  

                   But each of these grounds had already been litigated and resolved against  


Crawford.  In essence, Crawford was simply asking the trial judge to reconsider his  

earlier rulings on these issues and to reverse himself.  

                    Crawford's motion faced another legal hurdle:  it was untimely.  Alaska  

Criminal Rule 33(c) provides that any motion for a new trial based on grounds other than  

newly discovered evidence "shall be made within 5 days after [the] verdict or finding of  


guilt".    Just  after  the  jury  returned  its  verdicts  on  February  8,  2010,  Judge  Aarseth  

expressly informed Crawford of the five-day time limit imposed by Rule 33(c).   

                   When Crawford filed his motion, he asked the trial judge to relax the filing  


deadline and accept the late-filed motion.  Crawford blamed the three-month delay on  


his  standby  counsel.    But  Crawford  discharged  his  standby  attorney  at  the  end  of  


February.    The  trial  judge  found  that  Crawford  had  failed  to  show  good  cause  for  


relaxing the deadline until May.  

                                                           - 55 -                                                      2432

----------------------- Page 56-----------------------

                   The trial judge made an alternative ruling on the  merits of Crawford's  

motion.  He noted that each of Crawford's points was "thoroughly litigated either before  


or during [the] trial", and he declared that Crawford's arguments for reconsideration  

were "unpersuasive".  

                   On appeal, Crawford argues that the judge should have reached the merits  


of his claims.   But as we have just explained, the judge did reach the merits of these  


claims:  he declared that he was not convinced by Crawford's arguments on the merits.  


                   Crawford asserts in a conclusory fashion that the judge's view of the merits  


was wrong.  But Crawford does not present any actual argument on these points.   

                   Leaving  aside  the  question  of  whether  Crawford  should  have  received  

public funding to hire an expert witness (a question that we will address shortly), we  


have already explained why the trial judge's rulings on Crawford's various issues were  


either correct or, if incorrect, harmless.  We therefore uphold the trial judge's denial of  


Crawford's motion for a new trial.  

          Crawford's claim of cumulative error  

                   Crawford also raises a claim of cumulative error.  That is, he asserts that  


even if none of his claims of error is sufficient, standing alone, to justify a new trial, this  

Court  should  nevertheless  order  a  new  trial  because  of  the  cumulative  effect  of  the  

various errors that Crawford has identified.   

                   As we have explained in earlier decisions, a claim of cumulative error is  

really a claim of cumulative prejudice:  this doctrine applies in cases where the total  

                                                          - 56 -                                                     2432

----------------------- Page 57-----------------------

impact of the errors at trial "is so prejudicial that the defendant was deprived of a fair   

trial, even if each individual error was harmless." 20  

                  Here,  we  have  concluded  that  many  of  the  alleged  errors  identified  by  

Crawford were not errors at all.  And with respect to the true errors that Crawford has  

identified,  we  conclude  that  those  errors,  even  in  combination,  did  not  result  in  

recognizable prejudice to Crawford.  We therefore reject Crawford's claim of cumulative  


         The trial court's refusal to provide public funds for Crawford to obtain the  


         services of an expert witness  

                  This leaves one remaining issue:  whether the trial court committed error  

when it rejected Crawford's request for public funds to hire an expert witness.  

                  Central to Crawford's defense was his claim that, just prior to the shooting,  


the victim (Brown) attacked him and strangled him to the point of unconsciousness or  

semi-consciousness.  On appeal, Crawford argues that if he had retained a neurologist  

or other medical expert, this expert might have testified that strangulation could affect  

a  person's  thinking  or  perception,  and  this  testimony  might  have  helped  the  jury  

understand how strangulation could have affected Crawford's perception of the threat  

Brown posed.  In particular, Crawford argues that this expert testimony would have  

helped the jury assess the reasonableness of his mistaken belief that he was justified in  


using deadly force in self-defense.  

                  Crawford argues that, as an indigent defendant, he was entitled to public  


funds to retain such an expert witness, and that the superior court improperly abridged  

     20  Sawyer v. State, 244 P.3d 1130, 1137-38 (Alaska App. 2011), quoting                              Roussel v.  

State, 115 P.3d 581, 585 (Alaska App. 2005).  

                                                       - 57 -                                                    2432

----------------------- Page 58-----------------------

his rights by (1) failing to order the Public Defender Agency or the Office of Public  


Advocacy to pay for his proposed expert, and (2) ruling that court system funding was  


not available for this purpose under Alaska Administrative Rule 12(e).   

                    (a) The underlying court proceedings and rulings  

                    Early in the proceedings, when Crawford elected to represent himself, he  


indicated his interest in hiring an investigator to aid his defense.  The judge assigned to  


Crawford's case at that time, Superior Court Judge Michael Spaan, offered the alternative  

suggestion   of   appointing   standby   counsel   to   assist   Crawford.                              Crawford   later  


peremptorily challenged Judge Spaan, and the case was assigned to Superior Court Judge  

Patrick McKay.  

                    At  a  subsequent  representation  hearing,  Judge  McKay  also  proposed  

assigning standby counsel to assist Crawford with the investigation of the case, as well  


as to act as Crawford's legal advisor at trial.  At this point, Crawford expressed doubt  


that he would need an investigator; he told Judge McKay, "What I really think would  


help my case the most ... is a medical expert."  

                    Crawford then asked Judge McKay if the court could appoint an expert at  


public expense, since Crawford was indigent.  In response, Judge McKay issued an order  


assigning  the  Office  of  Public  Advocacy  "to  assist  [Crawford]  in  pre-trial  matters  

including investigation and request for medical expert[,] and to act as stand-by counsel  


at trial."  The judge told Crawford that he could file a motion if the Office of Public  

Advocacy declined to provide funds for Crawford's expert witness.   

                    After the Office of Public Advocacy learned of its appointment as standby  


counsel, the agency filed a motion to withdraw.  The agency argued that its enabling  

statute, AS 44.21.410(a)(5), only authorized the agency to represent defendants to the  


                                                           - 58 -                                                       2432

----------------------- Page 59-----------------------

extent that the defendant was eligible for representation by the Public Defender Agency             

- and the Public Defender Agency had   taken the position that  its enabling statute,  

AS  18.85.100(a),  did  not  authorize  it  to  act  as  standby  counsel  (i.e.,  to  act  as  a  

subordinate legal advisor to a pro se  defendant).  

                       The Office of Public Advocacy also took the position that, unless Crawford  


was its client, the agency was not responsible for securing or paying for expert witnesses  


or an investigator.  The agency suggested instead that, if the court could identify a private  


attorney who was agreeable to acting as Crawford's standby counsel, the court might  


appoint that attorney under Alaska Administrative Rule 12(e).  

                       After  hearing  the  Office  of  Public  Advocacy's  position,  Judge  McKay  


allowed   the   agency   to   withdraw,   and   he   appointed   a   private   attorney   under  

Administrative Rule 12(e).  

                       At several subsequent pre-trial hearings, Crawford reiterated his desire to  


retain the services of a medical expert.  He told the court that he wanted a medical expert  


to testify about his mental condition on the night of the homicide - in particular, how  

his   mental   state   might   have   been   affected   if   he   was   choked   to   the   point   of  



                       Judge McKay told Crawford that if he wished to retain an expert at public  


expense, his standby counsel would have to apply to the court system for the funds.  



Referring to the provisions of Administrative Rule 12(e)(5)(D)-(E),                                                the judge informed  

      21   Administrative Rule 12(e)(5)(D)-(E) provides:  

           (D) Extraordinary expenses will be reimbursed only if prior authority has been  

      obtained from the administrative director, upon recommendation by the assigned trial   

     judge or the presiding judge.  The assigned trial judge may recommend extraordinary     

      expenses up to a total amount not to exceed $1,000.00, and the presiding judge may   

      recommend an amount not to exceed an additional $1,500.00.  Extraordinary expenses  


                                                                    - 59 -                                                                2432

----------------------- Page 60-----------------------

Crawford that he could only approve up to $1000 for an expert, and that expenses above         

that amount would have to be approved by persons higher up in the court system.  

                     At  a  trial  call  on  June  16,  2009,  the  State  complained  that  it  had  not  

received notice of two potential defense experts, "one relating to strangulation, and one  

relating to child molestation."  At a subsequent pre-trial hearing, the State reiterated that  


if Crawford "intends to call experts for any [purpose], he needs to file the appropriate  



                     On August 3rd, Crawford told the court that his standby counsel was not  

helping  him  contact experts, and  he asked  for more  time so  he could  contact  them  


himself.  Judge McKay granted Crawford a three-month continuance - until November  

2, 2009 - to allow him to line up his experts.  Judge McKay also reminded Crawford  


that he would have to apply to the administrative director of the court system if the cost  


of these experts was going to exceed $2500.  

                     (At this same hearing, Judge McKay released Crawford's standby counsel,  


and the judge later appointed a new attorney to serve as Crawford's standby counsel.)  


                     By the time of the next hearing in Crawford's case, Judge McKay had been  


re-assigned to the superior court's civil docket, and Superior Court Judge Jack W. Smith  


     21    (...continued)  

     exceeding  $2,500.00  may  be  authorized  only  in  extremely  complex  cases  by  the  


     administrative  director  upon  the  recommendation  of  the  presiding  judge.    In  this  

     paragraph, "extraordinary expenses" are limited to expenses for:  

                     (i) Investigation;  

                     (ii) Expert witnesses; and  

                     (iii) Necessary travel and per diem expenses.  Travel and per  

                     diem may not exceed the rate authorized for state employees.  

           (E)  If  necessary  to  prevent  manifest  injustice,  the  administrative  director  may  

     authorize payment of compensation or expenses in excess of the amounts allowed  

     under this rule.  

                                                                - 60 -                                                            2432

----------------------- Page 61-----------------------

was assigned to Crawford's case.  In advance of this hearing, Crawford filed a request  


under Administrative Rule 12(e)(5)(D) for $7500 in court system funds to pay for DNA  



                   Judge Smith denied Crawford's request. He ruled that it was inappropriate  


to spend court system money under Administrative Rule  12(e) when Crawford was  

eligible for complete legal representation - either by the Public Defender Agency or the  


Office of Public Advocacy - under AS 18.85.100(a).  

                   Shortly  afterwards,  the  presiding  judge  of  the  Third  Judicial  District  

decided  that  Crawford's  case  should  be  re-assigned  to  Superior  Court  Judge  Eric  

Aarseth, who had more experience in criminal law.  

                   When the parties assembled in court on November 2, 2009 (at the end of  

the three-month continuance granted by Judge McKay), Crawford renewed his request  


for court system funds to pay for DNA testing.  Like Judge Smith, Judge Aarseth denied  


Crawford's request for these funds, but on a different ground:  Judge Aarseth concluded  


that a reasonable defense attorney would not spend money for the proposed DNA testing.  


Crawford has not challenged that ruling.  

                   Judge Aarseth also observed that, even though Crawford had been given  

three months to line up his proposed experts, Crawford had not filed any other specific  


requests for public funds to pay for other experts.  Crawford responded that his standby  


counsel had told him that there was no point in contacting experts if there was no money  


to pay for them.  Crawford's standby counsel then interjected:  


                             Standby Counsel :  Judge, if I may.  We were in the  

                   process of getting experts.  Toxicology - this is an expert  

                   case.  He needs experts to try this case, and the State has  

                   eight or ten.  And we were in the process of getting experts.  

                   I  know  locally  [one]  doctor  that  I  was  in  the  process  of  

                   contacting, and I think that would've been excellent for this  

                                                          - 61 -                                                      2432

----------------------- Page 62-----------------------

case.  However, Judge Smith denied the funding, and once  


we  -  Judge  McKay,  it  [seemed],  had  every  intention  of  

providing him with experts, and paying for it.  [But] Judge  


Smith denied his motion for funding for experts.  And at that  


point, I could not, in good faith, you know, tell these experts  


to look at these reports and, you know, we wanted to retain  

them.  We had no money, we weren't going to be able to  


retain  them.        So  that's  why  you  don't  have  any  CVs  or  

anything in front of you.  And that's the only reason.  We  

were  going  to  do  it.  ...  [T]hat's  the  only  reason  why  he  


waived [the three months under Rule 45] since August 3rd.  


And so another judge comes along and denies it, and he's left  

high and dry.   

          The Court:  Okay.  I don't see from the record there  


was ever a promise there was going to be any funding for  

experts.  [He was given] an opportunity to line up experts, an  


opportunity   to   make   that   application.      But  the   record  


[currently  in  front  of  me]  doesn't  support  that.    ...    Mr.  


Crawford was willing to waive time to see if he could get the  


experts, but there was never a promise to Mr. Crawford that  


he  was  going  to  get  the  funding.               And  there  is  a  lack  of  

anything  in  front  of  me  [to  support  a  request  for  funds].  


I  mean,  if  I'm  supposed  to  [decide]  whether  a  reasonable  

attorney would hire these experts, there's nothing in front of  

me [that would allow me] to make that determination, so ...  

          Crawford:  I've got it [now].  I brought the ...  

          The Court:  Mr. Crawford, ...  

          Crawford:  ... exhibits ...  

          The Court:  ... I'm telling you what exists right now.  


                                       - 62 -                                                       2432

----------------------- Page 63-----------------------


                              Crawford:  Well, I was just - I've got it right now, if  

                    you'll  let  me  present  it  ex  parte.    I  mean,  I'd  rather  not  

                    explain the whole defense ...  

                              The  Court:   I'm not going to [let you] present it ...  

                    ex parte.  

                              Crawford:    Well,  ...  then  I  guess  I'll  have  to,  you  


                    know, show them my whole defense before trial.  But if that's  


                    what I have to do to show you that I deserve experts, I've got  

                    it ...  


                              The Court:  No, what I'm saying is that [the] time has  

                    passed, and that we're moving on to the next stage [of the  


                    proceedings]. Okay? There was three months that was given  

                    [to you] to do this, and it didn't happen[.]  


                    Later in the hearing, there was continued discussion along these same lines.  


Judge Aarseth reiterated his ruling that Crawford had had three months to apply for the  

funding of expert witnesses, and he had failed to do so, and now the time for making  


those applications had passed.  Judge Aarseth pointed out that even if he gave Crawford  

more time to submit applications for public funding, Crawford would have to line up  

expert witnesses who would be reasonably available - and then, even if Crawford did  


that, Judge Aarseth would still have no idea whether the court system would approve  

funding above $1000.  

                    Later  in  the  hearing,  Judge  Aarseth  presented  another  rationale  for  his  


decision.    He  declared  that  he  would  not  revisit  Judge  Smith's  prior  ruling  that,  if  

Crawford wanted to hire experts at public expense, Crawford would have to accept full  


legal representation by the Public Defender Agency or the Office of Public Advocacy:  



                              The Court:  You've got this idea ... that somehow this  


                    pot  of  money  is  going  to  be  opened  up  because  you've  


                                                             - 63 -                                                         2432

----------------------- Page 64-----------------------


                    [chosen to represent yourself].  There is not an unlimited pot  


                    of money, and it is protected.                  The money that is there in  


                    these budgets is argued over every single year.  Nobody ever  


                    gets [all] the money that they want, and there is a process that  

                    is in place [for deciding how to spend it].  ...  


                              The  constitution  requires  that  we  have  to  provide  


                    someone an attorney if they can't afford it, and we have to  


                    provide some money so they can get their witnesses here.  

                    There's money for investigations.  But ... we have an agency  


                    that does that, and they've got the attorneys, and they have to  

                   jealously guard that money.  Presumably, they're going to  


                    spend that money wisely.  But there is this process that we go  

                    through, and the public has some trust that actually we're  


                    going to have people that are trained and ... know how to use  


                    these experts.  They know how to pick the experts [that] are  


                    needed  and  are  relevant.    They  know  how  to  prepare  the  


                              And, you know, ... there are limitations in terms of  


                    how far you can go.  You know, you don't have to accept it,  


                    but I'm telling you the ruling's been made there - made by  

                    another judge.  I'm not changing that ruling.   


                              Your choice [to waive counsel] is [also] a choice of the  


                    budget that you have.  There may be some money to bring  

                    [in] a few [of the] witnesses ... you want, but it isn't going to  

                    be anywhere near what you want.  Okay?  

Thus,  Judge  Aarseth  ruled  that  when  Crawford  rejected  court-appointed  counsel,  


Crawford  also gave up the right to have the government provide the funding for his  

proposed expert witness.   

                                                            - 64 -                                                       2432

----------------------- Page 65-----------------------

                      (b) A review of the case law on the question of whether indigent   

                 defendants who waive the right to court-appointed counsel and choose  


                 to proceed in propria persona are nevertheless entitled to public funds  

                 to hire expert witnesses  


                      The government has a limited obligation, under the federal constitution,  

to provide expert witnesses at public expense for indigent criminal defendants.  The  

seminal case on this point is Ake v. Oklahoma , 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed.  

2d 53 (1985).  

                      In  Ake ,  the  United  States  Supreme  Court  held  that,  when  an  indigent  

defendant's  sanity  is  clearly  at  issue,  and  will  be  a  significant  factor  affecting  the  

outcome of the  defendant's trial, the due process clause requires the government to  


provide the defendant with access to a competent psychiatrist (although not necessarily  


one  of  the  defendant's  choosing). 22  

                                                                   The  Supreme  Court  explained  that,  in  such  


circumstances, a psychiatric evaluation would constitute one of the "basic tools of an  


adequate defense."                    

                      Although Ake was a capital case, most of the courts that have considered  


this issue since 1985 have concluded that the holding in Ake applies to non-capital cases,  


and to non-psychiatric experts.                          


                      However, the decision in Ake dealt with an indigent defendant who was  


represented at public expense, and whose court-appointed attorney asked for additional  

funds to retain the services of a psychiatrist.  Thus, the question decided in Ake was  

      22   470 U.S. at 83, 105 S. Ct. at 1096.  

      23   470 U.S. at 76-77, 105 S. Ct. at 1092-93.  

      24   Cases on this issue are listed in Moore v. State , 889 A.2d 325, 337-38 (Md. 2006), and   

in Wayne R. LaFave, Jerold H. Israel, Nancy J. King, and Orin S. Kerr,                                          Criminal Procedure  

(3rd ed. 2007), §11.2(e), Vol. 3, pp. 645-46, 652-58 & n. 187.  

                                                                   - 65 -                                                               2432

----------------------- Page 66-----------------------

whether the government might sometimes be required to provide more than purely legal   

assistance  to  an  indigent  criminal  defendant,  when  that  additional  assistance  is  so  

important as to constitute one of the "basic tools" of an adequate defense.    

                    Alaska statutory law already guarantees this type of funding to indigent  


defendants  who  are  represented  at  public  expense.    The  Public  Defender  Agency's  

enabling  statute,  AS  18.85.100(a),  declares  that  an  indigent  person  charged  with  a  


serious crime is entitled to be represented by an attorney "and ... to be provided with the  


necessary services and facilities of this representation, including investigation and other  



                    Thus, the real question in Crawford's case is whether the government is  


required to provide this same funding for investigative services and expert witnesses  

when  an  indigent  defendant  waives  legal  representation  and  chooses  to  proceed  


in propria persona.  

                    As we explained in the preceding section of this opinion, both Judge Smith  


and Judge Aarseth ruled that an indigent defendant's right to hire expert witnesses at  

public expense is part and parcel of the defendant's right to counsel at public expense -  


and  thus,  when  a  defendant  chooses  not  to  be  represented  by  an  attorney  at  public  


expense, the defendant also gives up the right to demand public funding for ancillary  


services such as expert witnesses.  

                    Courts from other jurisdictions are split on this issue.   

                    In People v. Cardenas , 62 P.3d 621 (Colo. 2002), the Colorado Supreme  


Court held that a defendant who wanted the state to pay for a private translator was  


required to accept representation by court-appointed counsel. 25  

                                                                                              And in DeFries v. State ,  


597 So.2d 742 (Ala. Crim. App. 1992), the Alabama Court of Criminal Appeals applied  

     25   Cardenas, 62 P.3d at 623.  

                                                            - 66 -                                                       2432

----------------------- Page 67-----------------------

the same rule to an indigent                 pro se  defendant who asked the trial court for funds to hire         


 a private investigator.                The trial court refused this request, informing the defendant that  

 investigative  services  were  among  the  benefits  he  gave  up  by  electing  to  proceed  


pro se .                                             

                 The court of criminal appeals upheld the trial court's ruling, concluding that  

DeFries "knew what he was doing and his choice was made with eyes open." 28  

                      But several other courts have reached a contrary result.   

                      In Matter of Cannady , 600 A.2d 459 (N.J. 1991), an indigent defendant was  

 charged with murdering her live-in boyfriend.  Cannady's family hired an attorney to  


represent her, but the family could not afford to hire an expert on "battered women's  


 syndrome". 29                                                                                                         

                         Cannady's privately retained attorney asked the trial court to compel the  


Public  Defender  to  pay  for  the  proposed  expert,  and  the  trial  court  granted  this  



                  The Public Defender then appealed the trial court's decision, arguing that it  


was only required to pay for such ancillary services if the defendant was represented by  


the agency.              

                      The New Jersey Supreme Court disagreed:  



                                 New  Jersey's  policy  is  to  provide  counsel  for  all  


                      indigent defendants, not just for indigents represented by the  

                      [Public Defender].  The [Public Defender] Act's language  

      26   DeFries , 597 So.2d at 744-46.  

      27   Id. at 746.   

      28   Ibid. (quoting Adams v. United States ex rel. McCann                                , 317 U.S. 269, 279; 63 S. Ct.       

236, 242; 87 L. Ed. 268 (1942)).  

      29   Cannady, 600 A.2d at 459.  

      30   Ibid.  


      31   Id. at 459-60.  

                                                                 - 67 -                                                             2432

----------------------- Page 68-----------------------

                   states  that  eligibility  for  [its]  services  includes  not  just  a  

                   defendant's  inability  to  hire  private  counsel  but  also  a  


                   defendant's ability to pay for all other necessary expenses of  


                   representation.  Nowhere in the Act is there a requirement  


                   that  a  defendant  obtain  legal  services  from  the  [Public  

                   Defender]  before  he  or  she  may  obtain  ancillary  services  


                   from it.  The Legislature intended that a defendant's right to  

                   obtain  necessary  ancillary  services  for  his  or  her  defense  


                   depends on the defendant's indigence and not on whether the  

                   defendant is represented by outside counsel.  

Cannady, 600 A.2d at 462.   


                   (The New Jersey court then laid out a framework for implementing this  


rule, giving the Public Defender substantial discretion to decide what services it would  

provide to these non-client defendants - essentially, the same discretion the agency  

would exercise in cases where the defendant was represented by an agency attorney or  


by a contract attorney employed by the agency.) 32  



                   State v. Burns, 4 P.3d 795 (Utah 2000), was another situation where the  

defendant's family hired a private attorney to represent the defendant, and then that  

attorney asked for public funds to hire an expert.  The trial court denied this request,  

holding that defendants were only entitled to such financial assistance if they accepted  

court-appointed counsel. 33  

                                         The Utah Supreme Court reversed.  The court interpreted  

Utah's statutes as giving indigent defendants two discrete rights:  the right to counsel at  


public  expense,  and  the  right  to  state  funding  for  "investigatory  and  other  facilities  

     32   Cannady, 600 A.2d at 462.  

     33   Burns , 4 P.3d at 797.  

                                                          - 68 -                                                      2432

----------------------- Page 69-----------------------

necessary  for  a  complete  defense"  -  so  that  the  availability  of   this  second  type  of  

funding did not hinge on the defendant's acceptance of court-appointed counsel. 34  

                   In State v. Wool, 648 A.2d 655 (Vt. 1994), the Vermont Supreme Court  

likewise ruled that, under the Vermont statutes, an indigent pro se  defendant was entitled  

to investigative and expert witness services at public expense.  The trial court in  Wool  


had  ruled  that  a  defendant  was  only  entitled  to  those  services  if  they  elected  court- 


appointed counsel. 35  


                               But on appeal, the Vermont Supreme Court interpreted Vermont's  


Public Defender Act as giving defendants the right to such funding, even when  the  


defendant does not accept court-appointed counsel.                                  


                    The New Mexico Supreme Court reached a similar result in State v. Brown,  


134 P.3d 753 (N.M. 2006).  However, the New Mexico court's ruling was not based on  

legislative intent, but rather on the inherent authority of courts to protect the rights of  

indigent defendants.   


                    The defendant in Brown was represented by pro bono  counsel who asked  


the   trial   court   to   order   the   Public   Defender   to                   provide   funding   for   expert  



                    The trial court denied this request, ruling that the Public Defender's funds  

were only available to the indigent defendants whom the agency represented. 38                                            On  

interlocutory appeal, the New Mexico Court of Appeals agreed that the trial court had  

no  authority  to  order  the  Public  Defender  to  pay  expert  witness  fees  for  indigent  

     34   Id. at 800-01.  

     35   Wool, 648 A.2d at 659.  

     36   Id. at 658, 660.  

     37   Brown , 134 P.3d at 755.  

     38   Ibid.  

                                                           - 69 -                                                      2432

----------------------- Page 70-----------------------


defendants who were not represented by the agency.                                But the New Mexico Supreme  

Court reversed, holding that all indigent defendants were constitutionally entitled to  

public funding for expert witnesses. 40  

                                                          The supreme court declared that "the courts are  

the  ultimate  guardians  of  indigent  defendants'  rights"  -  and  the  fact  that  the  New  

Mexico Legislature had failed to set aside a budget appropriation for this purpose did not  


prevent the courts from taking action to obtain the funding necessary to protect these  

defendants' rights. 41  

                    (c) A review of the pertinent Alaska statutes and court rule  

                    We now turn to the question of how to interpret Alaska law on this subject.  


                    The Alaska Legislature created the Alaska Public Defender Agency to serve  

the needs of indigent criminal defendants.  AS 18.85.100(a), the statute that defines an  


indigent  defendant's  right  to  legal  representation,  declares  that  an  indigent  person  


charged with a serious crime is entitled, not just to legal representation, but also to "the  


necessary services and facilities of this representation":  


                             An  indigent  person  who  is  under  formal  charge  of  

                    having committed a serious crime ... is entitled  

                             (1)  to  be  represented  ...  by  an  attorney  to  the  same  


                    extent as a person retaining an attorney is entitled; and  

     39   Id. at 756.  

     40   Id. at 759.  

     41   Id. at 760.  

                                                           - 70 -                                                       2432

----------------------- Page 71-----------------------

                             (2)  to  be  provided  with  the  necessary  services  and  

                    facilities of this representation, including investigation and  

                    other preparation.  

                    For these purposes, an "indigent person" is defined as a person who does  


not have the means "to provide for payment of an attorney  and  all other  necessary  


expenses of representation without depriving the party or the party's dependents of food,  


clothing, or shelter".                                                                             

                                   This means that, even when a person might be able to pay for an  


attorney (if that were the only expense), the person still qualifies as an "indigent" - that  


is, still qualifies for the services of the Public Defender Agency - if the person can not  

also afford the "other necessary expenses of representation".  Arguably, these "other  

necessary expenses" might include the funds to hire an expert witness in a case where  


expert testimony is needed.  

                    The Alaska Legislature has also created the Office of Public Advocacy to  


provide  legal  representation  to  indigent  criminal  defendants  "who  are  entitled  to  


representation  under  AS  18.85.100  and  who  cannot  be  represented  by  the  public  

defender agency because of a conflict of interests."  AS 44.21.410(5).  This statute does  


not  expressly  mention  ancillary  services.    But  by  implication,  they  are  included  -  

because the legislature's purpose was to have the Office of Public Advocacy substitute  

fully for the Public Defender Agency in situations where the Public Defender has a  


                    The Alaska statutes do not expressly address the question of whether the  


Public Defender Agency's attorney services and its ancillary services are severable.  But  


the wording of AS 18.85.010 suggests that the legislature intended the Public Defender  


Agency (and the Office of Public Advocacy, in cases of conflicts) to be the sole source  


     42   AS 18.85.170(4) (emphasis added).  

                                                           - 71 -                                                       2432

----------------------- Page 72-----------------------

of funding for the legal services given to indigent defendants -  including both the  


services of attorneys and any required ancillary services.  

                    We note, in particular, the cross-reference between the two subsections of  


AS  18.85.100(a).    Subsection  (1)  of  the  statute  declares  that  an  indigent  criminal  


defendant is entitled "to be represented ... by an attorney", while subsection (2) declares  


that the indigent defendant is entitled "to be provided with the necessary [ancillary]  


services and facilities of this representation".   

                    The  phrase  "this  representation"  apparently  refers  back  to  the  attorney  

services described in subsection (1) of the statute.  If so, then the legislature's choice of  


words  suggests  that  the  legislature  viewed  the  two  types  of  services  described  in  


AS 18.85.100(a)(1)-(2) as one integrated whole, not separate and severable guarantees  


of public funding.   

                    When  Crawford's  case  was  litigated  in  the  superior  court,  the  court  at  

various  times  suggested  that  Alaska  Administrative  Rule  12(e)  might  provide  an  

alternative source of funding for pro se  indigent defendants who wished to retain expert  


witnesses.  But on closer inspection, the language of Administrative Rule 12(e) appears  


to prohibit this.    

                    Administrative Rule 12(e)(1) requires the Alaska Court System to provide  


(and pay for) the legal representation and related expenses of any indigent person who,  


as  a  matter  of  law,  is  entitled  to  counsel  at  public  expense  -  but  only  if  the  court  

"determines that the appointment [of counsel] is not authorized by AS 18.85.100(a) [the  


statute  defining  the  scope  of  the  Public  Defender  Agency's  authority  to  represent  

indigent persons] or AS 44.21.410 [the statute defining the scope of the Office of Public  

Advocacy's authority to represent indigent persons]".   

                    In  other  words,  Administrative  Rule  12(e)  applies  only  if  the  Public  


Defender Agency and the Office of Public Advocacy are not authorized to provide the  


                                                             - 72 -                                                         2432

----------------------- Page 73-----------------------

representation.  Thus, by its terms, Administrative Rule 12(e) does not seem to apply to  

indigent criminal defendants.  

                   If,  indeed,  the  pertinent  statutes  and  court  rule  do  not  authorize  the  

expenditure  of  public  funds  for  indigent pro  se   defendants  who  wish  to  hire  expert  


witnesses, the remaining question is whether, despite the lack of statutory authorization,  

the  government  of  Alaska  is  nonetheless  constitutionally  required  to  provide  these  

ancillary  services  at  public  expense  to  defendants  who  waive  their  right  to  a  court- 

appointed attorney and choose to represent themselves.  

                   In the previous section of this opinion, we noted the judicial split on this  


issue.    Some  courts  have  ruled  that  these  ancillary  services  are  available  only  to  

defendants who choose to be represented by court-appointed counsel; other courts have  


ruled that the two types of services (attorney representation, and the ancillary services  

of investigators and expert witnesses) are severable, and that indigent defendants are  

entitled to the ancillary services even if they choose to represent themselves.   

                   But among this latter group of cases, all but one of the courts' rulings  


hinged on statutory interpretation.  These courts construed their statutes to mean that the  

two types of services were discrete and severable, so that indigent defendants might  


choose to avail of themselves of attorney services, or ancillary services, or both.   

                   Only one court - the New Mexico Supreme Court in State v. Brown - has  


adopted the view that indigent pro se  defendants have a constitutional right to obtain  

investigative and expert witness services at public expense, even though the legislature  


only intended to provide these services to defendants who accepted court-appointed  


                                                        - 73 -                                                     2432

----------------------- Page 74-----------------------

                    (d)  Why we conclude that we need supplemental briefing on this  



                   As we have described in the preceding sections, courts are split on the  

question of whether indigent defendants who waive their right to counsel and choose to  


represent themselves are nevertheless entitled to public funds to hire expert witnesses.  


The answer to this question hinges on issues of statutory interpretation and, potentially,  


issues of constitutional law.   

                    This question is a matter of first impression in Alaska, and our resolution  


of this issue will affect not only Crawford but many other criminal defendants as well.  


In order to obtain the best input on this question, we conclude that we should solicit  


supplemental briefs not only from Crawford and the State, but also from our state's two  


criminal  defense  agencies,  the  Public  Defender  Agency  and  the  Office  of  Public  



                   We recognize that these two defense agencies conceivably have financial  

interests that would prevent them from arguing Crawford's side of this question.  We  

therefore direct the agencies to tell us if that is indeed the case.  If so, we will then  


appoint independent counsel to argue Crawford's side.  


                   With respect to all of Crawford's claims of error except the superior court's  

refusal to provide an expert witness at public expense, the judgement of the superior  


court is AFFIRMED.   

                   With respect to Crawford's claim that he was entitled to public funds to hire  

an expert witness, even though he declined an attorney at public expense, we will solicit  


                                                           - 74 -                                                      2432

----------------------- Page 75-----------------------

supplemental briefs from the parties, as well as amicus curiae briefs from the Public  

Defender Agency and the Office of Public Advocacy.   

                   Within 30 days, those two agencies must tell us whether they believe they  


can ethically brief Crawford's side of this controversy.  If neither agency believes that  


it can do so, this Court will appoint an independent attorney to brief Crawford's position.  


                   Once we have ascertained whether  we need to appoint an independent  

attorney to brief Crawford's position, we will establish a briefing schedule.  

                                                        - 75 -                                                     2432

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