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

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


              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-11408  


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



                                                                                                                   O  P  I  N  I  O  N  




                                                      Appellee.                                     No. 2522 - September 23, 2016  


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


                           Eric Smith, Judge.  


                           Appearances:                     Elizabeth             D.      Friedman,              Assistant            Public  


                           Advocate, Appeals and Statewide Defense Section, and Richard  


                           Allen,         Public           Advocate,              Anchorage,                for       the       Appellant.  


                           Elizabeth  T.  Burke,  Assistant  Attorney  General,  Office  of  


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


                           General, Juneau, for the Appellee.  


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


                           Superior Court Judge.*  



                           Judge MANNHEIMER.  

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

Constitution and Administrative Rule 24(d).                             

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


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


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


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


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


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


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


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


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


repeatedly confessed to killing Braden.  


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


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


appointed to represent him.  


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


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


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




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


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


challenge these rulings on appeal.)  


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


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


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


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


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


what motions to file.  

                                                              - 2 -                                                          2522

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


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

                                                                                                                         a defendant who is  


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


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


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



                        Although             the       right       to      counsel             and        the       right       to  


                        self-representation are constitutionally protected, the right to  


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


                        not.       The  trial court  has  broad  discretion  to  deny  hybrid  


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


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


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


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


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


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


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


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


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


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


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


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


request for co-counsel status.  


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


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


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

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

                                                                          - 3 -                                                                     2522

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


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


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


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


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


following his arrest).  


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


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


expenses were unwarranted.  


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


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


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


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


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


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


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


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


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


Thomas wanted.  


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


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


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


tactical and strategic decisions of his court-appointed attorney.  


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


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


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


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

                                                              - 4 -                                                          2522

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


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


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


time and agency money.  


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


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


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


counsel status.  


                    The  Office  of  Public  Advocacy  was  required  to  represent  Thomas  


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


pursue  every  conceivable  avenue  of  investigation  or  every  conceivable  method  of  


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


App. 2007):  


                    Given an unrestricted budget and freed of any constraints as  


                    to  probable  materiality  or  accountability,  a  lawyer  might  


                    cheerfully log many hours looking for the legal equivalent of  


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


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


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


                    world,  expenditure  of  time  and  effort  is  dependent  on  a  


                    reasonable indication of materiality.  


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


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


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


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


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


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


                    The judgement of the superior court is AFFIRMED.  

                                                              - 5 -                                                          2522

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