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

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


           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 @

                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                               


                                                                                    Court of Appeals No. A-11078          

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



                                                                                               O  P  I  N  I  O  N  




                                             Appellee.                                  No. 2462 - July 10, 2015  


                      Appeal  from  the  Superior  Court,  Third  Judicial  District,  


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


                      Wolverton, Judges.  


                      Appearances: Hannah King (opening brief) and Sharon Barr  


                      (reply  brief),  Assistant  Public  Defenders,  and  Quinlan  


                       Steiner,  Public  Defender,  Anchorage,  for  the  Appellant.  


                      Diane L. Wendlandt, Assistant Attorney General, Office of  


                       Special Prosecutions and Appeals, Anchorage, and Michael  


                      C. Geraghty, Attorney General, Juneau, for the Appellee.  


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



                      Hanley, District Court Judge. 

                      Judge MANNHEIMER.  


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

Constitution and Administrative Rule 24(d).  

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

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


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


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


officers in fear of imminent serious physical injury).  


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


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


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


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


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


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


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


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


vehicle during the pursuit.  


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


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


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


represent himself at trial.  


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


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


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


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


in Shorthill's vehicle.  


                     Accordingly, we affirm Shorthill's convictions.  


                                                               - 2 -                                                          2462

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

           Underlying facts  


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


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


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


was headed south, toward Anchorage.  


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


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


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


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


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


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


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


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


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


a "public place".  


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


Nelson and Richard Dykstra - responded.  


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


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


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




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


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


puncturing his tires.  


                                                              - 3 -                                                          2462

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

                                                                            After the police engaged in these unsuccessful attempts to force Shorthill                                                                                                                                                                                                                                                                                                    

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

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

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

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

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

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

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

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

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


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

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

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

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


                                                                             Shorthill eventually exited the Glenn Highway at the South Peters Creek   

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

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

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

help from inside the truck.                                                                                                                               

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

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


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

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


                                                                                                                                                                                                                                         - 4 -                                                                                                                                                                                                                                     2462

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

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

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

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

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

two misdemeanors:                                                                                     reckless driving and resisting arrest.)                                                                                                                                                              

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

                                  his trial   

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

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

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

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

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

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

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

 at 2388.                                   

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

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

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

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

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

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

                  1                (...continued)  

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


 "Self-loading Carbine of the Simonov system".  


                                                                                                                                                                                                                 - 5 -                                                                                                                                                                                                           2462

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

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


scheduled for his trial).  


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


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


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


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


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


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


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


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


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


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


judge was bonded.  


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


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


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


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


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


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


objections that were sustained by the judge).  


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


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


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


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


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


assistance of a lawyer.  


                                                               - 6 -                                                          2462

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

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

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

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

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

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

a detailed factual description.                                                                                                               

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

court's decision in Shorthill's case.                                                                                                                                     

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

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

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

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

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

if the defendant had a lawyer.                                                                                                                 

                                                               Here, the record demonstrates that Shorthill had persistent and pervasive                                                                                                                                        

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

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


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


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


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


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


properly decide to require Shorthill to have a lawyer.  

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

                                                                                                                                                                                                 - 7 -                                                                                                                                                                                            2462

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

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


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


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


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


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


he personally did it.  


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


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


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


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


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


                     Shorthill also voiced some legal theories that were unconventional:  he  


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


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


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


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


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


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


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


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


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


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


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


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


                                                              - 8 -                                                          2462

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

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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


the court.  


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


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


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


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


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


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


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


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


                                                               - 9 -                                                         2462

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

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


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


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


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


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


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


following colloquy ensued:  



                               Shorthill:        Sir,  that  man  [apparently  referring  to  a  


                     police officer in the courtroom] is in uniform.  


                               The Court:  I ...  


                               Shorthill:  And he's ...  


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


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


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


                               Shorthill:  ... rushing me to judgment.  


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


                     counsel table.  Do you want that?  


                               Shorthill:  Under force and threat of arms, sir.  


                               The Court:  Yep.  You bet it is.  


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


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


                                                              - 10 -                                                           2462

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

                     Theparties thenproceeded todiscuss Shorthill's requestfor discovery from  


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


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


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


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

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


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



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


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


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


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




                               Shorthill:  Well, could I speak, sir?  


                               The Court:  Yeah.  Go ahead.  


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


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


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


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


                     And he should not be here, sir.  


                               The Court:  Okay.  


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


                     This is a ... neutral ground, sir.  


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


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


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


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




                                                              - 11 -                                                          2462

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

          Shorthill:  Sir, ...


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


          Shorthill:  May I speak?


           The Court:  Briefly.


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


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


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


they're trying to get out of.  



           The Court:  Right.  


          Shorthill:  And that stands as they are trained to use  


that, sir.  


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


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


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


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


this courtroom.  All right.  


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


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


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


           The Court:  Have a seat.  


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


           The Court:  Right now.  


                                          - 12 -                                                           2462

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

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


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


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


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


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


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


requested materials.  


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


                                                              - 13 -                                                         2462

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

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




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


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


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


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


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


so - like practicing medicine without a license."  


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


superior court to hold an in camera representation hearing.  


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


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


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


waived his right to counsel.  


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


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


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


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


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


police pursuit).  


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


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


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


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


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


                                                             - 14 -                                                          2462

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

                     Shorthill spent a significant portion of the hearing asking questions based  


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


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


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


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


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


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


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


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


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


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


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


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


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


additional materials.  


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


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


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


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


 Shorthill's permission to represent himself.  


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


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


discovery was concluded.  


                     The  suppression  hearing  was  then  continued  until  September  2007.  


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


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


                                                              - 15 -                                                         2462

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

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


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


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


to disclose to Shorthill following his in camera review.  


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


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


that he would have Paiz testify about other matters.  


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


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


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


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


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


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


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


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


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


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


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


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


prosecutor's objection to this line of questioning.  


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


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


the evidence resulting from that arrest.)  


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


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


                                                             - 16 -                                                          2462

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

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


contemplated answer was "very relevant".  


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


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


judge's rulings after the ruling was made.  


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


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


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


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


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


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


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


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


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


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


 Shorthill and Judge Card:  



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


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


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


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


                     myself the best I can to fit the rules.  


                               The Court:  All right, but we ...  


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


                     to present evidence, and to distinguish whether things can be  


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


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


                                                              - 17 -                                                         2462

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

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


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



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


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


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


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


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


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


                    video tape, Mr. Shorthill?  


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


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


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


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


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


                    figure it out, because ...  


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


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




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


resumed on September 18, 2007.  


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


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


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


him from presenting his case and making his record.  


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


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


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


                                                             - 18 -                                                          2462

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

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


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


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


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


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


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


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


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


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


legality of the traffic stop.  


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


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


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


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


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


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


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


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


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


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


violated, she was not the defendant in the case.  


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


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


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


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


                                                             - 19 -                                                          2462

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

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


not allow this.  


                    When Shorthill resumed his examination of the officer, Shorthill used  


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


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


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


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


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


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


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


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


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


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


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


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


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


functioning properly.  


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


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


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


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


Amendment protections in this particular incident?"  


                    At  the  conclusion  of  the  hearing,  Shorthill  delivered  his  suppression  


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


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


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


                                                             - 20 -                                                          2462

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

                     Twodayslater,JudgeCarddeniedShorthill'ssuppression motion in an oral  


decision announced on the record.  


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


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


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


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


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


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


"a number of outstanding motions".  


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


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


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


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


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


                     JudgeVollandresponded thatShorthill'sobjectionwas"noted" -and then  


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


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


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


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


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


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


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


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


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


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


                                                              - 21 -                                                         2462

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

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


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


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


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


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


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



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


                     served" entail?  


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


                     any appellate review.  


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


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




                                The Court:  It's not ...  


                               Shorthill:  Because that's a ruling ...  


                                The Court:  It's not ...  


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


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


                               Shorthill:  ... void.  


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


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


                     convicted, I can tell you that.  


                               Shorthill:          Well,  since  the  motion  for  a  Rule  45  


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


                                                               - 22 -                                                            2462

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

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


                     appellate ...  


                               The Court:  No.  


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


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


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


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


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


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


                     trial [on] October 15th.  


                               .  .  .  


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


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


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


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


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


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


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


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


ready for trial.  Judge Wolverton then addressed Shorthill:  



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


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


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


                     Excuse me, sir ...  


                               The Court:  No, no, no.  


                               Shorthill:  Don't interr ...  


                                                              - 23 -                                                           2462

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

                               The Court:  I'm asking the questions.


                               Shorthill:  Don't stop me ...


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



                               Shorthill:  No, sir.  


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


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


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


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




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




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


                               The Court:  Mr. Shorthill, ...  


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


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


                     Shorthill [now].  


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


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


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


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



                                                              - 24 -                                                          2462

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

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


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


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


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


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


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


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


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


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


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


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


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


45 objection was preserved.  


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


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


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


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


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


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


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


Wolverton on December 3, 2007.  


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


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


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


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


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



                               Shorthill: We have an issue of outstanding discovery.  



                                                              - 25 -                                                          2462

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

                               The  Court:         Judge  Card  and  I  have  reviewed  this.  


                    There is no outstanding discovery.  The rulings have been  


                    made.  ...  What have you not received?  


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


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


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


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


                    that you forced on me against my will ...  


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


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


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


                    going to go through this any more.  


Shorthill then raised his Rule 45 claim again:  



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


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


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


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


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


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


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


                               The Court:  I'll have my ...  


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


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


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


                    proceed today.  


                              Shorthill:  No, sir, I haven't.  


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


                    You may appeal it if you wish.  


                                                             - 26 -                                                          2462

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

                               Shorthill:  Okay.  So what is your ruling then?  



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


                    December 15th.


                               .  .  .


                               Shorthill:  I need [an] explanation, sir.  


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


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


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




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



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


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


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


                     and how it turned out, is the ...  


                               The Court:  I'm not ...  


                               Shorthill:  ... way it is?  


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


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


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


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


                     discuss it any more.  


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


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


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


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


                                                              - 27 -                                                           2462

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

           Shorthill:        I  asked  you  what  your  authority,  your  


jurisdictional authority was in this case. And your answer  


was, I don't know.  


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


superior court [judge] appointed according to the rules and  


authority of the government of Alaska. I preside over felony  




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


           The Court:  I do.  


           Shorthill:  Okay.  Do you have an official bond?  


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



           Shorthill:  It is required, because ...  


           The Court:  No, it's ...  


           Shorthill:  ... it goes back ...  


           The Court:  ... not.  


           Shorthill: ... to ...  


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


           Shorthill:  ... 1943, sir.  



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


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


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


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


I'm exercising it.  


                                          - 28 -                                                          2462

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

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


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


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


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


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


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




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


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


return ofproperty allegedly seized by thepoliceillegally, together with an accompanying  


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


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


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


outstanding motion.  


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

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


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


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


to take that up on appeal".  


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


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


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


additional ones.  


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


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


                                                             - 29 -                                                         2462

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

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


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


                     In  response  to  this  announcement,  Judge  Wolverton  asked  Shorthill,  


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


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


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


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


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


came on the line, the following conversation ensued:  



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


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


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


                     selection outside the presence of the jury in a case involving  


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


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


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


                     interested in having you assist him with his case.  


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


                    think that we could find an attorney that could represent him  


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


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


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


                    his ability to ...  


                               The Court:  Represent himself?  


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


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


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


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


                               .  .  .  


                                                              - 30 -                                                          2462

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

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


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


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


                               Shorthill:  Yes, sir.  


                               Quinlan:         I  suspect  that  him  having  assistance  of  


                     counsel is essential to putting on a proper trial.  


                               The Court:  Okay.  


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


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


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


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


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


                     contact with any attorney in Alaska at this point.  


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


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


                     Following  this  phone  conversation,  Judge  Wolverton  asked  Shorthill  


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


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


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


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


longer believed Shorthill was capable of representing himself:  



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


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


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


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


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


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


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


                                                              - 31 -                                                          2462

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

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


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


                    you need an attorney.  


                              Shorthill:  Well, sir ...  


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


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


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


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


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


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


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


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


                    represent you here in Alaska.  


                               (Whispered conversation)  


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


                    how long are you requesting?  


                               (Whispered conversation)  


                              Shorthill: Under the circumstances, I would be asking  


                    for 120 days.  


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


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




                    When court reconvened, Judge Wolverton formally ruled that Shorthill  


could no longer represent himself:  



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


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


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


                                                             - 32 -                                                          2462

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

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

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


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


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


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


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


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


                    you.  ...  


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


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


                    simply going to appoint a court-appointed counsel at your  


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


                               Unidentified Speaker: Yes.  


                              Shorthill:  Yes, sir.  


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


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


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


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


                    by an attorney  


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


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


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


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


                    This  right  of  self-representation  exists  alongside  the  constitutionally  


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


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


                                                             - 33 -                                                          2462

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



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


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


                     [even  though]  a  defendant  has  clearly  and  unequivocally  


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


                    must  [nevertheless]  conduct  a  thorough  inquiry  [before  


                     allowing the defendant to proceed without an attorney].  



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

                                                                         The inquiry mentioned in this passage  


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


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


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


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


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


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


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


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


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


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


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


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


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


Shorthill to represent himself at trial.  


                     Theleading caseon this issueistheUnited States SupremeCourt's decision  


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


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


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

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

                                                             - 34 -                                                          2462

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

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

at 2388.           

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

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



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


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


that this latter task required a greater degree of competency:  



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


                          competence to stand trial] set forth a standard that focuses  


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


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


                          counsel and emphasize the importance of counsel. They thus  


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


                          choose to forgo counsel at trial presents a very different set  


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




                                       .  .  .  


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


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


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


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


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


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


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


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


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


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

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

                                                                              - 35 -                                                                           2462

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

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


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


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


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


thinking, deficits in sustaining attention and concentration,impairedexpressiveabilities,  


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


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


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


interest in having a fair trial:  



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


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


                     capacity  to  conduct  his  defense  without  the  assistance  of  


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


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


                    to prove humiliating as ennobling.  Moreover, insofar as a  


                     defendant'slackofcapacitythreatensan improper conviction  


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


                    undercuts the most basic of the Constitution's criminal law  


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


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


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


                     government's interest in ensuring the integrity and efficiency  


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


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


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


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


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



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


                                                             - 36 -                                                          2462

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

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


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


that the trial is fair:  



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


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


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


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


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


                     given  the  different  capacities  needed  to  proceed  to  trial  


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


                     minimal standard of competence] alone is sufficient.  


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


                     Based on these considerations, the Supreme Court concluded that even  


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


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


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


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


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


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


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


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


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


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


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


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


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


disorganized thinking and deficits in sustaining his attention and concentration.  


                                                              - 37 -                                                          2462

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

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


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


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


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


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


doubt as to his competence to stand trial.  


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


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


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


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


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


temporarily revoked his bail.  


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


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


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


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




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


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


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


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


of criminal proceedings regardless of their precise cause.  


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


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


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


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


                                                             - 38 -                                                          2462

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

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


pervasive as to undermine the fundamental fairness of the proceedings.  


                    A diagnosis of severe mental illness can sometimes provide a reasoned  


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


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


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


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


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


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


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


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


when Judge Wolverton finally imposed a lawyer on Shorthill.  


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


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


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


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


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


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


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


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


himself any longer.  


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


Shorthill to be represented by a lawyer.  


                                                             - 39 -                                                          2462

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

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


          Alaska Criminal Rule 45  


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


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


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


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


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


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


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


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


and police procedural and tactical manuals.  


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


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


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


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


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


relating to Shorthill's discovery request.  


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


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


an in camera review.  


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


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


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


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


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


                                                             - 40 -                                                         2462

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

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


discovery - in essence, motions asking the court to reconsider its decision.  


                    This led to three months of litigation - starting in late December 2005 and  


continuing through April 2006 - regarding (1) whether the Municipality had standing  


to object to the court's discovery order, and (2) whether, or to what extent, the court  


should modify its discovery order.  In the meantime, the Municipality submitted the  


requested materials to Judge Wolverton for his in camera review.  


                    On  April  20,  2006,  Judge  Wolverton  issued  an  order  informing  the  


attorneys for the Municipality and the police officers (1) that he had completed his  


in camera review of the documents, and (2) that he had tentatively decided to disclose  


some, but not all, of the requested documents to the defense. Judge Wolverton furnished  


these selected documents to the Municipality and the police officers, and (at the same  


time) the judge scheduled a hearing where the parties (including the Municipality and  


the officers) would have a final opportunity to present arguments concerning the scope  


of the disclosure.  


                    Those hearings took place on May 2nd and 3rd. Toward the conclusion of  


the May 3rd hearing, Shorthill's attorney told Judge Wolverton that he wanted the judge  


to continue the next pre-trial hearing for a period of six weeks - presumably to allow  


time for the defense to examine the disclosed materials and pursue any investigation  


suggested by them.  Judge Wolverton granted this request for a continuance, setting the  


next pre-trial conference for June 13th.  But at the same time, the judge announced that  


the Rule 45 expiration date for bringing Shorthill's case to trial would be extended to  


July 10th.  


                    Immediately after Judge Wolverton made this announcement, Shorthill's  


attorney told the judge that Shorthill believed Rule 45 should run against the State during  


this additional six-week period.  But Judge Wolverton pointed out that, unless Rule 45  


                                                             - 41 -                                                          2462

----------------------- Page 42-----------------------

was tolled, the Rule 45 clock would expire on June 1st -  i.e., before the pre-trial  


conference that the judge had just calendared for June 13th at the request of the defense.  


Judge Wolverton then told the defense attorney:  



                               The Court:  You have to decide what it is you want to  


                     do.  [I am] clearly going to toll [Rule 45] through the next  


                    pre-trial conference if you're requesting six weeks to review  


                     [the discovery materials].  ...  [So] the trial date is going to be  


                     July 10th.  [And] Rule 45 is going to toll to July 10th.  



                     On  May  10,  2006  (i.e.,  one  week  after  the  May  3rd  hearing),  Judge  


Wolverton issued his final discovery order.  In this order, the judge released a specified  


packet of documents to the State and to the defense, with the stipulation that "neither  


party  [could]  use  any  of  the  documents  for  any  purpose  whatsoever  without  prior  


application to the court."  


                     On June 13th, Shorthill's attorney filed a motion asking Judge Wolverton  


to reconsider his limitation on the parties' use of the discovery materials. The judge held  


a hearing on this request that same day.  At this June 13th hearing, the defense asked for  


a four-week continuance of Shorthill's case - in other words, a continuance beyond the  


July 10th trial date that Judge Wolverton had previously announced.  This request was  




                     Shorthill does not challenge any of the rest of the time that it took to bring  


his case to trial.  


                     The heart of Shorthill's argument on appeal is that Judge Wolverton's  


discovery order of December 16, 2005 - the order in which the judge apparently  


granted Shorthill's discovery request in full - was a final order that should have been  


enforced, since neither the State nor the Municipality nor the police officers individually  


ever directly opposed the order, nor did they file a pleading that was expressly labeled  


                                                              - 42 -                                                          2462

----------------------- Page 43-----------------------

a "motion for reconsideration" of  the order.  Shorthill argues that, to the extent Judge  

Wolverton delayed enforcing his order for seven months (to allow the Municipality and                                                                                                                                        

the officers to seek a narrower scope of disclosure than originally ordered), the judge                                                                                                                                

acted improperly, and the elapsed time should have counted against the State.                                                                                                                                     

                                    It is true that the Municipality and the police officers did not use the words                                                                                                     

"reconsideration" or "opposition" in the titles of their pleadings; rather, they styled their                                                                                                                              

pleadings as motions for "protective orders" against the disclosures called for in Judge                                                                                                                               

Wolverton's December order.                                                      But as this Court recently observed in                                                               Crawford v. State                              ,  

"the character of a pleading is determined by its subject matter and not its designation."                                                                                                                                               


337 P.3d 4, 15 (Alaska App. 2014).                                                                                                                                                                                

                                                                                                       The Municipality and the officers were seeking  


reconsideration and modification of the judge's December order, regardless of the exact  


words used in their pleadings.  


                                    The litigation of these matters - i.e., whether the Municipality and the  


officers had standing to contest the scope of Judge Wolverton's December order, and  


(if  so)  whether  the  judge  should  modify  the  scope  of  that  order  -  was  a  direct  


consequence of Shorthill's initial motion for discovery. Thus, the time it took to conduct  


this litigation was attributable to Shorthill's motion, and Rule 45 was tolled until this  


litigation was completed.  


                                    As an alternative argument, Shorthill contends that Rule 45 should have  


started running against the State on March 8, 2006 - the day after Shorthill's attorney  


filed a pleading that Shorthill now describes as a "non-opposition" to the protective  


orders sought by the Municipality and the police officers. But Shorthill mischaracterizes  


the pleading that his attorney filed on March 7th.  


                                    Far from being a "non-opposition" to the Municipality's and officers'  


requests for modification of the discovery order, the defense attorney's pleading (by its  

         5        Quoting State v. Moad, 294 S.W.3d 83, 86 (Mo. App. 2009).   

                                                                                                           - 43 -                                                                                                         2462

----------------------- Page 44-----------------------

very title) was a "partial opposition" to these requests for modification.  And although  


"partial opposition" is, technically speaking, an accurate description of this pleading,  


Shorthill's attorney in fact objected to all but a fraction of the modifications sought by  


the Municipality and the officers.  


                    With regard to the standing issue, Shorthill's attorney declared that she was  


"opposed to the Municipality's further involvement in this case", given the fact that the  


officers themselves had filed a separate challenge to the superior court's discovery order.  


And with regard to the scope of disclosure described in the superior court's December  


order,  Shorthill's  attorney  continued  to  assert  that  all  the  documents  Shorthill  was  


seeking were "material and ... relevant to the facts of this case".  


                    The only information that Shorthill's attorney now said she was willing to  


do without was the "private information contained [in] the relevant documents" -  


specifically, "the officers' home addresses, [any] identifying information about [their]  


spouses  and  children,  ...  financial  information,  social  security  numbers,  telephone  


numbers, [and] insurance information [identifying their] beneficiaries".  The defense  


attorney agreed that this information could be redacted from the relevant documents  


before they were produced to her.  But she continued to insist on production of all the  


documents encompassed by Shorthill's discovery motion.  


                    Thus, Shorthill is completely mistaken when he asserts in his brief that this  


March 7th pleading "indicated to the trial court that further litigation of the discovery  


issue was unnecessary".  


                    We therefore conclude that Rule 45 was tolled during the time attributable  


to the litigation and resolution of Shorthill's discovery motion - from the filing of the  


motion in December 2005 until Judge Wolverton's issuance of his final order regarding  


this matter on May 10, 2006.  


                                                             - 44 -                                                          2462

----------------------- Page 45-----------------------

                    But the Rule 45 clock did not begin running again on May 10th - because,  


as we have already explained, Shorthill's attorney (acting in anticipation of the court's  


final discovery order) had already requested a six-week continuance of the proceedings  


when the parties came to court for the hearing on May 3rd.  


                    When  Judge  Wolverton  granted  these  additional  six  weeks,  and  set  


Shorthill's trial for July 10th, he expressly ruled that Rule 45 would be tolled until this  


July 10th trial date - because, if Rule 45 was not tolled, it would expire before the six  


weeks had elapsed.  Shorthill does not challenge this ruling on appeal.  


                    For these reasons, we conclude that Shorthill's speedy trial claim has no  



          The superior court's decision to let the State introduce evidence of the  


          semi-automatic rifle in Shorthill's vehicle at the time of the traffic stop  


                    As we described early in this opinion, when Shorthill finally stopped his  


truck, he refused to get out of the vehicle.  In the process of pulling Shorthill from the  


truck, one of the officers observed an SKS semi-automatic rifle lying in the cab of the  


truck, and this rifle was seized.  


                    This, however, was not the State's only evidence pertaining to the rifle. As  


we have also explained, Shorthill's wife was using a video camera to filmtheir encounter  


with the police. This video showed the rifle on Shorthill's lap during the police chase.  


                     Shorthill's attorney sought to preclude the State from introducing any  


evidence of the rifle at his trial.  He argued that the rifle was not used to threaten the  


officers, that the officers were unaware of the rifle until after the pursuit was over, and  


that the rifle was not otherwise relevant to the charges.                                   But the State argued that  


Shorthill's actions with the rifle (laying it on his lap) tended to prove his state of mind  


- his attitude toward the police - during the pursuit.  


                                                             - 45 -                                                          2462

----------------------- Page 46-----------------------

                                On appeal, Shorthill argues that because his possession of the rifle was                                                                                             

lawful, and because he did not use the rifle to assault any of the officers, the fact that he                                                                                                             

had  the   rifle   in   the   truck   was   irrelevant   - or,                                                          if   minimally   relevant,   it   was   more  

prejudicial than probative.                                       

                                We agree that evidence of the rifle was potentially unfairly prejudicial, but                                                                                           

Shorthill's decision to place the rifle on his lap during the highway pursuit was also                                                                                                               

potentially probative of Shorthill's contemporaneous state of mind. See                                                                                                   Lerchenstein v.   


State, 697 P.2d 312, 317-19 (Alaska App. 1985),                                                                                                                                         

                                                                                                                     where this Court upheld the admission  


of evidence that a murder defendant had been "angry and combative ... immediately prior  


to the [homicide]."  


                                On balance, given the record before us, Shorthill has failed to convince us  


that the potential unfairness of this evidence so clearly outweighed its probative value  


that the superior court erred in admitting the evidence. We therefore uphold the superior  


court's decision.  



                Shorthill's argument that the State violated its duty to present exculpatory  


                evidence to the grand jury  


                                Under Alaska law, a prosecutor who presents a case to the grand jury has  


a duty to apprise the grand jurors of exculpatory evidence. Frink v. State, 597 P.2d 154,  


 164-66 (Alaska 1979).  However, this obligation "extends only to evidence that tends,  


in and of itself, to negate the defendant's guilt."   Cathey v. State, 60 P.3d 192, 195  


(Alaska App. 2002). A prosecutor is not required "to develop evidence for the defendant  


 [or] present every lead possibly favorable to the defendant."  Frink, 597 P.2d at 166.  

        6       Affirmed, 726 P.2d 546 (Alaska 1986).  

                                                                                                - 46 -                                                                                              2462

----------------------- Page 47-----------------------

                    Shorthill assertsthat theprosecutor who presented hiscaseto thegrand jury  


violated this duty in two ways: by failing to present the video recordings that were taken  


by cameras mounted inside the patrol cars of Officers Conley and Dykstra, and by failing  


to play the audio of the 911 call that Shorthill made while the police were pursuing him.  


                    Withrespect to thevideos taken by thedashboardcameras, Shorthill argues  


that this video evidence is exculpatory because it contradicts Officer Conley's testimony  


to the grand jury regarding the third-degree assault charge.  


                    Conley told the grand jury that Shorthill "swerve[d] ... and force[d] me  


from the right lane [of the highway] into the left lane", causing Conley to fear that their  


cars would collide, or that Shorthill's maneuver would force him into the median that  


separated  him from oncoming  traffic.                        But it is not clear  that the dashboard  video  


evidence contradicts Conley's testimony.  


                    The incident in question occurred when Conley was driving in the right- 


hand lane of the highway and Shorthill was beside him to the right, in a merging lane that  


was about to terminate.  


                    Although  "swerved"  may  have  been  too  strong  a  word  to  describe  


Shorthill's maneuver, the video does show Shorthill's car coming appreciably closer to  


Conley's patrol car as the merging lane narrowed, with both vehicles on course to  


occupy the right lane of the highway.   Shorthill's apparent intention was to prevent  


Conley from forcing him onto the right shoulder of the road; he steered his truck so as  


to enter the right lane, even though Conley's patrol car was in his way.  


                    In other words, the video evidence is at least consistent with, if not directly  


corroborative of, Conley's testimony that Shorthill intentionally drove toward him and  


that he (Conley) needed to move left to avoid a collision.  


                    Shorthill alsoargues that thevideoevidenceshows that areasonableperson  


in Conley's position would not have perceived a threat of imminent serious physical  


                                                             - 47 -                                                         2462

----------------------- Page 48-----------------------

injury. This second argument fails for much the same reasons as the first argument. The  


video evidence is consistent with the conclusion that Conley could reasonably have  


feared that Shorthill's car would collide with his patrol car - either because Shorthill  


intended  this  result,  or  because  Shorthill  might  misjudge  the  amount  of  time  and  


maneuvering room that was available to Conley before he was forced from his lane.  


                     It is true that the video evidence is likewise consistent with Shorthill's  


theory of the case - that he was only trying to re-enter the main roadway as his merging  


lane ended, to avoid the danger of being forced onto the right-hand shoulder of the  


highway. But the fact that the video evidence is arguably consistent with both Shorthill's  


account and Conley's account does not make it "exculpatory" for purposes of the Frink  


rule - because this evidence does not tend, in and of itself , to negate Shorthill's guilt.  


                     This brings us to Shorthill's argument that the audio recording of his 911  


call was exculpatory evidence with regard to the charge of felony eluding.  Shorthill  


argues that this 911 call is exculpatory because his conversation with the 911 operator  


shows that he genuinely feared the officers, and that he honestly believed that it was not  


safe to pull over until he reached a public place (in this case, a gas station parking lot).  


                     In this appeal, the State does not contest Shorthill's interpretation of the  


felony eluding statute, AS 28.35.182 - Shorthill's implicit assertion that a person is not  


guilty of "knowingly fail[ing] to stop as soon as practical and in a reasonably safe  


manner" if the person subjectively believed that it was unsafe to stop sooner. Indeed, the  


jury in Shorthill's case was instructed that "[t]o convict Mr. Shorthill [of felony eluding],  


you must find beyond a reasonable doubt that he knowingly drove past the first place that  


he actually believed provided a practical and reasonably safe stopping point."  


                     We express no opinion as to whether this is the proper interpretation of the  


statute.   Rather than resolve this question of statutory interpretation, we will decide  


 Shorthill's grand jury claim, and his sufficiency of the evidence claim, on the assumption  


                                                              - 48 -                                                          2462

----------------------- Page 49-----------------------

that the concept "as soon as practical and in a reasonably safe manner" is defined in  


terms of the defendant's subjective understanding of the situation.  


                    But even construing the offense in the manner that Shorthill suggests, the  


911 audio would not "tend[], in and of itself," to negate Shorthill's guilt.  


                     Shorthill and his wife initially called 911 when Officer Conley started  


following them just past the Eklutna exit.  At that time, Shorthill told the operator that  


an unmarked police vehicle was following him, that he was driving to a public place  


before he stopped his truck, and that the operator should tell the officer to "back off".  


                    The next time Shorthill conversed with the 911 operator, he asked her if she  


had talked with the officers who were following him, and he again demanded that she  


tell the officers to "back the hell off" because he was "scared for [his] life".  Shorthill  


also mentioned that he wanted to speak with someone in the police department's internal  


affairs section.  


                    The third time that Shorthill conversed with the 911 operator, he yelled at  


her that another police officer was in front of him, and he wanted her to get the officers  


to break off their pursuit.  He reiterated that the officers were "scaring [him] to death",  


and he declared, "This is wrong."  


                    These 911 conversations are consistent with Shorthill's claim that he was  


genuinely afraid of the officers. However, the 911 conversations can also reasonably be  


interpreted as proof that Shorthill was acting aggressively, that his anger was escalating  


each time he spoke with the 911 operator, and that he would only stop when he felt it  


was appropriate.  


                    Because the 911 calls are susceptible of these conflicting interpretations,  


they are not the kind of evidence that, standing alone, negates Shorthill's guilt.  


                    We further note that, even without the 911 audio, evidence of Shorthill's  

mental state was presented to the grand jury.  Officer Nelson testified at grand jury that,  


                                                             - 49 -                                                          2462

----------------------- Page 50-----------------------

after the traffic stop, both Shorthill and his wife told the officers they did not stop their                                                                                                                                                                                                                                                      

truck sooner because they were in fear for their lives from the police officers.                                                                                                                                                                                                                                                     Nelson  

also told the grand jurors that Shorthill's wife said that they did not stop sooner because                                                                                                                                                                                                                                          

they were concerned about putting people in danger if they stopped on the side of the                                                                                                                                                                                                                                                                    


                                                       For these reasons, we reject Shorthill's contention that the State violated its                                                                                                                                                                                                                       

duty to present exculpatory evidence to the grand jury.                                                                                                                                                                              

                            The sufficiency of the evidence to support Shorthill's convictions                                                                                                                                                          

                                                        Shorthill   argues   that   the   evidence   presented   at   his   trial   was   legally  

insufficient to support his convictions for felony eluding and third-degree assault. When                                                                                                                                                                                                                                                    

a defendant claims that the evidence is not sufficient to support a criminal conviction, we                                                                                                                                                                                                                                                               

view the evidence (and all reasonable inferences to be drawn from that evidence) in the                                                                                                                                                                                                                                                                   

light most favorable to the verdict, and we ask whether a reasonable juror could have                                                                                                                                                                                                                                                             

concluded that the State had proved the defendant's guilt beyond a reasonable doubt.                                                                                                                                                                                                                                                                               7  


                                                        Shorthill's  claims  that  the  evidence  was  insufficient  to  support  his  


convictions are primarily based on viewing the evidence in the light most favorable to  


himself.   But as we just explained, this is not the test; we are obliged to view the  


evidence in the light most favorable to upholding the jury's verdicts.  


                                                       Viewing the evidence in this light, reasonable jurors could have concluded  


that Shorthill was guilty of third-degree assault for intentionally steering his vehicle  


toward  Officer  Conley  under  circumstances  that  caused  the  officer  to  reasonably  


apprehend a danger of imminent serious physical injury.  

              7             See, e.g., Moore v. State , 298 P.3d 209, 217 (Alaska App. 2013).  

                                                                                                                                                                       - 50 -                                                                                                                                                                      2462

----------------------- Page 51-----------------------

                    Similarly, reasonable jurors could have concluded that Shorthill was guilty  


of  felony  eluding.           The  evidence  supported  a  reasonable  inference  that  Shorthill's  


protestations of fear to the 911 operator were not genuine, and that he refused to stop his  


vehicle because he was angry, because he disliked the police, and because he did not  


want to yield to them.  Likewise, the evidence supported a reasonable inference that  


Shorthill's driving maneuvers during the police chase amounted to reckless driving (as  


defined in AS 28.35.400), the other component of the felony eluding charge.  


                    For these reasons, we conclude that the evidence presented at Shorthill's  


trial was sufficient to support his convictions.  



                    The judgement of the superior court is AFFIRMED.  


                                                            - 51 -                                                       2462

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