text:
    Daniel Lee BROWN, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12335
    Court of Appeals of Alaska.
    August 31, 2018
    Glenda J. Kerry, Girdwood, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
    Patrick Sherry, Assistant Attorney General, Office of Special Prosecutions, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, and Allard, Judge.
   Judge MANNHEIMER.

Daniel Lee Brown appeals his conviction for criminal nonsupport, AS 11.51.120(a). As defined in this statute, a person commits criminal nonsupport if they are legally responsible for the support of a child and if, without lawful excuse, they knowingly fail to provide support for the child. Under the pertinent portion of the statute, this crime is a felony if the amount of unpaid child support equals $20,000 or more, or if the person fails to provide child support for 24 consecutive months or more. AS 11.51.120(d).

Brown was responsible for the support of two children from his former marriage, and he made support payments of $1031 a month for seven years-from July 2003 until July 2010. But in August 2010, Brown stopped paying child support. In fact, according to Department of Labor records, Brown no longer had any reportable wage income after the third quarter of 2010. Brown also stopped applying for his Permanent Fund dividend in 2010-apparently, because his previous two dividends had been garnished for child support.

In February 2010 (i.e. , about a half-year before Brown stopped paying child support), Brown started a construction business. More than $100,000 was deposited into the business's bank account between September 2010 and May 2011. However, according to the construction business's records, Brown drew no salary from the business during this time. Instead, acting in his capacity as co-owner of the business, Brown made transfers and cash withdrawals from the business account that were not reported as income to him.

Brown was indicted on two counts of felony nonsupport, and he went to trial in February 2015. At trial, Brown conceded that he had failed to pay his child support, but he contended that he had a lawful excuse for failing to pay. Brown asserted that he had been making good-faith, reasonable efforts to make money to pay the child support, but that he had been unsuccessful despite his best efforts.

The jury rejected this defense and found Brown guilty.

The inadvertent omission in the jury instructions on the elements of criminal nonsupport

In this appeal, Brown points out that there was a flaw in the two jury instructions that listed the elements of his crime. The pertinent portions of these instructions read:

Daniel Brown ... has been charged ... with the crime of criminal nonsupport. ... The elements of [this crime] are:
1) That between ... January 11, 2012 and ... March 1, 2014, Daniel Lee Brown was a person legally charged with the support of his [minor] children ... under a valid [court] order;
...
3) That Daniel Lee Brown's failure to provide support for his children was knowing;
4) That Daniel Lee Brown's failure to provide support was without lawful excuse.

The flaw here is that these instructions did not expressly say that the State was required to prove that Brown did, in fact, fail to pay his court-ordered support. Rather, this concept was merely implicit in the other clauses of the instructions.

Although Brown points out this problem on appeal, Brown's trial attorney did not object to these jury instructions. Thus, to prevail in this appeal, Brown must demonstrate plain error. Here, we conclude that the flaw in the jury instructions is not plain error.

First, we agree with the State that even though the instructions did not explicitly say that the State was required to prove that Brown failed to pay his child support, this element is implicit in the other clauses of the instruction.

Clause (3) of the instructions directed the jurors to decide whether the State had proved that "Daniel Lee Brown's failure to provide support for his children was knowing". Similarly, clause (4) directed the jurors to decide whether the State had proved that "Daniel Lee Brown's failure to provide support was without lawful excuse". Any reasonable juror, being asked to decide these two issues, would understand that the charge of criminal nonsupport required the State to prove that Brown had, in fact, not paid his child support.

Second, the element of failure to pay was not contested at Brown's trial. As we have explained, Brown's attorney expressly conceded that Brown had failed to pay his court-ordered child support. The issue litigated at trial was whether Brown had a lawful excuse for failing to pay-that is, whether Brown had been unable to make money to pay his child support obligation despite reasonable, good-faith efforts.

In the context of jury instructions, "an appellate court will only find plain error where the erroneous instruction or lack of instruction creates a high likelihood that the jury followed an erroneous theory, resulting in a miscarriage of justice." Dobberke v. State , 40 P.3d 1244, 1247 (Alaska App. 2002) (quoting In re Estate of McCoy , 844 P.2d 1131, 1134 (Alaska 1993) ). There is no such likelihood here. We therefore conclude that the flaw in the jury instructions in Brown's case is not plain error.

For similar reasons, we do not interpret the Alaska Supreme Court's recent decision in Jordan v. State , 420 P.3d 1143 (Alaska 2018), as requiring automatic reversal of Brown's conviction.

The defendant in Jordan was charged with possessing four ounces or more of marijuana in his home. At trial, Jordan's defense was that he reasonably believed that his marijuana weighed less than four ounces. The trial judge erroneously concluded that this was not a valid defense to the charge. Thus, the judge refused to instruct the jury on this defense, and the judge would not let Jordan testify about why he believed that his marijuana weighed less than four ounces.

Thus, as our supreme court put it, "the jury was not informed that [Jordan's] reasonableness was an issue", and "the jury had no opportunity to decide ... whether [Jordan's] defense was a reasonable one". In these circumstances, the supreme court held, the trial judge's refusal to instruct the jurors on this contested element of the offense was a structural error-i.e. , an error that automatically required reversal of Jordan's conviction.

We do not read Jordan as requiring automatic reversal of a criminal conviction whenever there is some flaw in the jury instruction on the elements of the crime. And Brown's case does not present the kind of structural error that was found in Jordan .

Brown was charged with criminal nonsupport-a crime whose very name implies that the State is alleging that the defendant failed to provide support. And even though the challenged jury instructions may have been technically flawed, these instructions clearly communicated that Brown was being prosecuted for failing to pay his child support-because, in these instructions, the jury was told that the State had to prove that "Brown's failure to provide support for his children was knowing" and that "Brown's failure to provide support was without lawful excuse."

Furthermore, the fact that Brown failed to pay his child support was uncontested. Brown's attorney affirmatively conceded that Brown had not paid his child support. Brown's entire defense was that he lacked the money to pay the child support despite his reasonable, good-faith efforts.

Thus, Brown was allowed to present his chosen defense, and the jury instructions allowed the jury to fully consider that defense. For these reasons, we conclude that the flaw in the jury instructions in Brown's case does not constitute structural error.

Whether the jurors had to unanimously agree as to whether (1) Brown had sufficient money to pay his child support but he deliberately refused, or (2) Brown did not have sufficient money to pay his child support, but he could have had sufficient money if he had made reasonable efforts to obtain it

Brown raises one other claim on appeal. This second claim involves another jury instruction-the instruction that dealt with the question of whether Brown had a "lawful excuse" for failing to pay his child support.

The challenged jury instruction told the jurors that there were two ways in which the State could prove that Brown's failure to pay his child support was "without lawful excuse": the State could prove that Brown "actually had the financial ability to provide [the] support", or the State could prove that Brown "could have had [this] ability through the exercise of reasonable efforts".

This jury instruction ended with the following paragraph, which told the jurors that they did not have to be unanimous as to which theory of "without lawful excuse" the State had proved:

To return a unanimous verdict of guilty, you need not all agree on which way the state proved [the element of "without lawful excuse"]. But each juror must find that the state has proved beyond a reasonable doubt [at] least one of these alternate ways of proving [this] element ....

On appeal, Brown argues that the jury was in fact required to reach unanimous agreement as to which theory the State had proved-i.e. , unanimous agreement as to whether (1) Brown had the money to pay the child support, but he refused to pay, or (2) Brown could have had the money to pay the child support, but he refused to exercise reasonable efforts to get the money.

We doubt that Brown's jury had to be unanimous as to which theory the State had proved. See our detailed discussion of this issue in Taylor v. State , 400 P.3d 130, 134-36 (Alaska App. 2017).

But in any event, we reject Brown's claim of error because Brown himself invited this error.

As explained in Johnson v. State , 328 P.3d 77, 86 (Alaska 2014), "invited error [occurs] when a party urges a lower court to do something that the party later appeals as erroneous". Here, Brown's attorney proposed the instruction that he now challenges-including the portion expressly telling the jurors that they were not required to reach unanimous agreement as to whether Brown had sufficient money to pay the child support but refused to do so, or whether, instead, Brown could have had the money but he failed to make reasonable, good-faith efforts to get it. The trial judge took the challenged language nearly verbatim from the instruction that Brown's attorney proposed.

As the supreme court explained in Johnson , an appellate court will review an invited error only if the case presents an "exceptional situation" where reversal of the lower court's judgement "is necessary to preserve the integrity of the judicial process or to prevent a miscarriage of justice."

Given the evidence in Brown's case, and given the way the case was argued to the jury, we conclude that Brown's case does not present the kind of exceptional situation where we should overlook the fact that Brown's own attorney asked the judge to give the jury instruction that he now challenges on appeal.

Conclusion

The judgement of the superior court is AFFIRMED.

      See Alaska Criminal Rule 30(a). The pertinent part of this rule declares: "No party may assign as error any portion of the charge [to the jury] or omission therefrom unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objections."

      Jordan , 420 P.3d at 1146-47.

      Id. at 1156.

      Id. at 1155-56.


source: Caselaw Access Project

author: Judge ALLARD.

license: Public Domain

text:
    Michael SAOFAGA Jr., Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-13191
    Court of Appeals of Alaska.
    October 19, 2018
    Shana Bachman, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
    Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
   Judge ALLARD.

After agreeing to go to trial before a superior court judge and litigating various motions before that judge, Michael Saofaga Jr. filed a motion under Alaska Criminal Rule 25(d) seeking to peremptorily challenge the judge. The judge denied the motion, ruling that Saofaga had forfeited his right to file the peremptory challenge when he litigated the various pretrial issues before the judge.

Saofaga now appeals the denial of his peremptory challenge. Saofaga raises three claims on appeal.

First, Saofaga argues that the judge lacked the authority to rule on the validity of the peremptory challenge because he was the subject of the challenge. We conclude that this argument is based on a misreading of Criminal Rule 25(d) and is without merit.

Second, Saofaga argues that he did not forfeit his right to peremptorily challenge the judge because (according to Saofaga) the peremptory challenge occurred before the judge had issued any substantive rulings on the matters litigated in front of him. This argument is also without merit, and it is directly contradicted by the record of the superior court proceedings.

Lastly, Saofaga argues that he did not forfeit his right to peremptorily challenge the judge because he did not personally waive this right. We have previously rejected the argument that a litigant must affirmatively waive the right of peremptory challenge. Even though Criminal Rule 25(d)(5) refers to a "waiver" of the right of peremptory challenge, Rule (d)(5) is in fact a rule of forfeiture, and no personal waiver from the defendant is required.

We accordingly affirm the superior court's denial of Saofaga's peremptory challenge.

Background facts and prior proceedings

Michael Saofaga Jr. is currently charged with committing perjury based on statements he made at sentencing in an earlier criminal case. Superior Court Judge Jack W. Smith was the sentencing judge in that earlier case.

Judge Smith was also later assigned to be the trial judge in Saofaga's perjury case. This assignment occurred on May 1, 2018, after Saofaga's attorney announced that the defense was ready for trial.

On May 4, Saofaga's attorney moved to disqualify Judge Smith for cause. The defense attorney stated that she was bringing this motion "out of an abundance of caution," because she was concerned that Judge Smith could potentially be called as a witness at the perjury trial. The prosecutor responded that he could not see how Judge Smith could be a material witness in the perjury trial: the sentencing hearing in the earlier case had been recorded, and Judge Smith had never expressed an opinion on the veracity of Saofaga's statements at that sentencing hearing. Judge Smith agreed with the prosecutor that he was not a material witness, and he therefore denied the defense attorney's motion to disqualify him for cause. However, after issuing this ruling, Judge Smith noted that Saofaga could still use his peremptory challenge under Criminal Rule 25(d).

Superior Court Judge Gregory Miller was appointed under AS 22.20.020(c) to review Judge Smith's ruling on the motion to disqualify for cause. In his written order, Judge Miller affirmed Judge Smith's ruling on this motion - but Judge Miller, too, noted that "[Saofaga] may still exercise a peremptory challenge of Judge Smith."

The next hearing in Saofaga's case was held on May 7. Saofaga's attorney received a copy of Judge Miller's order prior to that May 7 hearing. However, the defense attorney did not file a peremptory challenge of Judge Smith at that hearing. Instead, the attorney agreed that trial could begin in front of Judge Smith in two days (May 9). The defense attorney also participated in the discussion of various preliminary pretrial matters, which Judge Smith addressed during that May 7 hearing.

The next day, Saofaga's attorney filed three motions in limine. One of these "motions in limine" was actually an untimely suppression motion. In this suppression motion, Saofaga's attorney argued that the State's photographic lineup was so suggestive that it violated due process, and she asked the court to suppress the results of that lineup. (Saofaga's attorney did not acknowledge that this suppression motion was untimely, nor did the attorney provide any explanation for the delay.)

In the second motion in limine, Saofaga's attorney argued that the State should be precluded from introducing evidence of certain prior bad acts of Saofaga - including any details regarding the underlying criminal case in which Saofaga was alleged to have committed perjury. In the third motion, Saofaga's attorney argued that Saofaga's trial should be continued because of some discovery issues.

The State opposed all three of these defense motions. The State argued, in particular, that the first "in limine" motion - i.e. , the suppression motion - should be summarily denied because it was untimely.

On the morning of May 9, while the potential jurors were filling out their juror questionnaires and waiting for jury selection to begin, Judge Smith addressed the three defense motions on their merits.

Judge Smith expressed concern about the untimeliness of the suppression motion, and he noted that he had the authority to summarily deny that motion based on its untimeliness. But Judge Smith ultimately decided to continue Saofaga's trial so that the due process issues raised by the motion could be more fully litigated. The judge then noted that his decision to continue Saofaga's trial rendered Saofaga's third motion moot (the motion to continue the trial, based on discovery issues).

Judge Smith then set various deadlines for further briefing on Saofaga's two remaining motions, and he scheduled an evidentiary hearing on the suppression motion. Judge Smith also ordered the defense attorney to explain the reasons for the delay in filing the suppression motion and ordered her to show cause why monetary sanctions should not be imposed against her based on that delay.

The next day, a different defense attorney from the same public agency entered an appearance on Saofaga's behalf. This new attorney filed a peremptory challenge of Judge Smith under Criminal Rule 25(d). Judge Smith denied the peremptory challenge in a written order. In that order, Judge Smith concluded that Saofaga had forfeited the right to peremptorily challenge him because Saofaga's attorney had already litigated substantive matters before the judge.

Saofaga's new attorney filed a "Notice of Objection" in which she argued that Judge Smith had no authority to decide the peremptory challenge because the challenge was against Judge Smith. Superior Court Judge Michael L. Wolverton was assigned to review Judge Smith's denial of the peremptory challenge. Judge Wolverton subsequently issued his own written ruling, affirming Judge Smith's forfeiture analysis.

This appeal followed.

Saofaga's claims on appeal

Alaska Statute 22.20.022 provides for peremptory challenges to judges. Alaska Criminal Rule 25(d) implements this right in criminal cases.

Under Criminal Rule 25(d), the prosecution and the defense are each entitled to one judicial peremptory challenge of right, subject to two procedural requirements: First, under the provisions of Criminal Rule 25(d)(2), the party must file the peremptory challenge within five days after receiving notice that the judge has been assigned to try the case. (The filing of a motion to disqualify a judge for cause tolls this time, and the time starts anew if the motion is denied. ) Second, under the provisions of Criminal Rule 25(d)(5), a party cannot exercise a peremptory challenge to a judge if the party has already agreed to the assignment of that judge, or if the parties already participated in certain proceedings before the judge, knowing that the judge has been permanently assigned to the case.

Here, the parties agree that Saofaga's peremptory challenge was filed within five days of Judge Miller's order affirming Judge Smith's denial of the motion to disqualify for cause. However, they disagree as to whether, under the provisions of Rule 25(d)(5), Saofaga forfeited his right to peremptorily challenge Judge Smith. They also disagree as to whether Judge Smith had the authority to rule on the validity of Saofaga's peremptory challenge.

Saofaga's claim that Judge Smith lacked the authority to issue any ruling on the peremptory challenge

Saofaga contends that if a peremptory challenge is filed within the time period permitted by Rule 25(d)(2), then the judge who has been challenged has no authority to rule on (or take any other action on) the peremptory challenge. Instead, according to Saofaga, the case must be immediately transferred to a different judge. This different judge would then rule on whether the party has forfeited their right of peremptory challenge under Rule 25(d)(5).

Saofaga bases this argument on Criminal Rule 25(d)(3), which states in pertinent part:

(3) Re-Assignment. When a request for change of judge is timely filed under this rule, the judge shall proceed no further in the action, except to make such temporary orders as may be absolutely necessary to prevent immediate and irreparable injury before the action can be transferred to another judge.

According to Saofaga, this provision required Judge Smith to immediately transfer Saofaga's case to another judge prior to ruling on the forfeiture question under Criminal Rule 25(d)(5).

We disagree with Saofaga's interpretation of this provision. As the title of the provision indicates, Criminal Rule 25(d)(3) governs the procedures under which a case is permanently reassigned to another judge when the initial judge has been validly preempted. It does not govern the procedures for determining whether a valid peremptory challenge has been filed in the first instance. There is nothing in Rule 25(d)(3) to suggest that a judge who is the subject of a peremptory challenge cannot rule on the validity of that challenge. Indeed, the provision contemplates that the judge who is the subject of the peremptory challenge will rule on whether it is "timely." There is no reason to believe that this same judge does not also have the authority to decide whether the challenge is invalid because the party's right of peremptory challenge has been forfeited under Criminal Rule 25(d)(5).

Saofaga nevertheless contends that rulings under Rule 25(d)(5) should be made by another judge so as to avoid the "perception of unfairness." We find no merit to this contention. We note that when a judge is the subject of a motion to disqualify for cause under AS 22.20.020, the judge must still rule on the motion, even though the "perception of unfairness" would seemingly be greater in those circumstances. We perceive no reason why peremptory challenges should be treated differently.

We therefore reject Saofaga's claim that Judge Smith had no authority to rule on the validity of the peremptory challenge.

Whether Saofaga forfeited his peremptory challenge under Criminal Rule 25(d)(5)

Saofaga asserts that he had not forfeited his peremptory challenge because (according to Saofaga) Judge Smith had not yet issued any "substantive" rulings in his case when the peremptory challenge was filed. This is untrue. The record demonstrates that Judge Smith had already made multiple substantive rulings in this case - including, but not limited to, Judge Smith's ruling (in Saofaga's favor) that Saofaga should be allowed to pursue his suppression motion, even though the motion could be summarily denied as untimely.

In any event, the test for forfeiture is not whether the judge has made "substantive" rulings in a case. Instead, the test is whether the party (1) has agreed to the assignment of the judge, after reasonable opportunity to consult with counsel; or (2) has participated before the judge in an omnibus hearing, any subsequent pretrial hearing, a hearing under Rule 11, or the commencement of trial, knowing that the judge has been permanently assigned to the case.

Here, the record indicates that both acts of forfeiture occurred. At the May 7 pretrial hearing, six days after Judge Smith was assigned to the case, Saofaga's attorney agreed that Saofaga's trial would start on May 9 in front of Judge Smith. The attorney also participated in the discussion of various pretrial matters at that May 7 hearing, and she then filed substantive motions before Judge Smith the following day. The defense attorney took these actions after having received multiple reminders that Saofaga still had a peremptory challenge that could be exercised against Judge Smith if Saofaga did not want to proceed to trial before Judge Smith.

On appeal, Saofaga argues that his attorney's actions should not be imputed to him, and he contends that there is nothing in the record to show that he (Saofaga) personally waived his right to peremptorily challenge Judge Smith. But as this Court has previously explained, Criminal Rule 25(d)(5) is "a forfeiture rule rather than a waiver rule."

The right to peremptorily challenge a judge without a showing of bias is an "unusual right" that is purely statutory in nature; it did not exist at common law and it does not exist in the federal courts or in most state courts. Thus, when a defendant who is represented by counsel fails to validly exercise a peremptory challenge, reasonable access to counsel is presumed and "no inquiry need be made into the defendant's understanding of his rights, or the extent to which he and counsel have discussed them." Saofaga's personal waiver was therefore not required under these circumstances.

Conclusion

We AFFIRM the denial of Saofaga's peremptory challenge of Judge Smith.

      See Alaska R. Crim. P. 25(d)(5).

      See Alaska Appellate Rule 216(a) (authorizing an immediate interlocutory appeal when a peremptory challenge is denied).

      Trudeau v. State , 714 P.2d 362, 366 (Alaska App. 1986) (citing Main v. State , 668 P.2d 868, 871-72 (Alaska App. 1983) ).

      The prior criminal case occurred in 2015 and was resolved through a plea agreement. See State v. Saofaga , 3AN-15-10892 CR.

      See AS 22.20.020.

      See Alaska R. Crim. P. 12(b)-(c).

      See Main v. State , 668 P.2d 868, 871-72 (Alaska App. 1983).

      Alaska R. Crim. P. 25(d)(2) ("If a party has moved to disqualify a judge for cause within the time permitted for filing a notice of change of judge, such time is tolled for all parties and, if the motion to disqualify for cause is denied, a new five-day period runs from notice of the denial of the motion.").

      See Alaska R. Crim. P. 25(d)(2).

      See 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction § 47:14, at 344 (7th ed. 2007) (stating that section headings may "help illuminate legislative intent").

      When a judge is directly challenged for cause under AS 22.20.020, the judge who has been challenged is required to decide whether to grant or deny the disqualification. See AS 22.20.020(c). If the judge grants the disqualification, the presiding judge of the district is required to "immediately transfer the action to another judge of that district." Id. If the judge denies the disqualification, the question of disqualification "shall be heard and determined by another judge assigned for [that] purpose." Id.

      Alaska R. Crim. P. 25(d)(5).

      Trudeau v. State , 714 P.2d 362, 366 (Alaska App. 1986) (citing Main v. State , 668 P.2d 868, 871-72 (Alaska App. 1983) ).

      Wamser v. State , 587 P.2d 232, 234-35 (Alaska 1978).

      Trudeau , 714 P.2d at 366 (citing Main , 668 P.2d at 871-72 ). We note that Saofaga has not claimed that his attorney's actions constituted ineffective assistance of counsel; nor has he claimed that he is actually prejudiced by having Judge Smith as his trial judge. See Trudeau , 714 P.2d at 366-67.


text:
    David William BRAGG, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12342
    Court of Appeals of Alaska.
    October 19, 2018
    Carolyn Perkins, Law Offices of Carolyn Perkins, Salt Lake City, Utah, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
    Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, and Allard and Wollenberg, Judges.
   Judge ALLARD.

David William Bragg was convicted, following a jury trial, of two counts of sexual abuse of a minor in the first degree for sexually abusing his fifteen-year-old biological daughter, who had recently come to live with him. On appeal, Bragg argues that the superior court erred in denying his motion to dismiss the indictment. In his motion, Bragg argued that the prosecutor failed to provide exculpatory evidence to the grand jury in violation of her duty under Frink v. State . For the reasons explained here, we agree with the superior court that the prosecutor complied with her duty under Frink .

Bragg also argues that it was plain error for the superior court to fail to instruct the jury that its verdict on Count I had to be based on a different incident of sexual abuse than its verdict on Count II. Because this point of law was adequately explained to the jury, we find no plain error.

Accordingly, we reject both claims of error and we affirm Bragg's convictions.

Bragg's claim that the prosecutor violated her duty under Frink v. State

Under Alaska law, a prosecutor has an affirmative duty to provide exculpatory evidence to the grand jury. This duty is consistent with the prosecutor's ethical duty to "seek justice, not simply indictment or conviction." But it is also grounded in the important protective role that the grand jury is intended to serve within Alaska's criminal justice system. As the Alaska Supreme Court has repeatedly emphasized, "protection of the innocent against oppression and unjust prosecution" ranks among the grand jury's most vital functions.

Under Alaska Criminal Rule 6(q), the grand jury is required to find an indictment "when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant." This rule also provides that "[w]hen the grand jury has reason to believe that other available evidence will explain away the charge, it shall order such evidence to be produced and for that purpose may require the prosecuting attorney to subpoena witnesses." Because the grand jury cannot be expected to call for evidence that it does not know about, the Alaska Supreme Court created the affirmative duty in Frink .

Although Frink imposes an affirmative duty on the prosecutor, the duty remains narrowly defined. The Alaska Supreme Court did not intend to "turn the prosecutor into a defense attorney." The exculpatory nature of the evidence must therefore be self-evident. The prosecutor is likewise not required to "develop evidence for the defendant" or to present "every lead possibly favorable to the defendant."

With these principles in mind, we turn to Bragg's claim that the prosecutor violated her duty under Frink in this case.

Bragg's claim rests on differences between the victim's first police interview and her second police interview. The police investigation into Bragg's sexual abuse of his fifteen-year-old daughter began with a report to the Office of Children's Services. As a result of this report, Bragg's daughter was interviewed by the police. During this first interview, the police detective asked the daughter if she was having sexual relations with Bragg. In response, the daughter paused for a time, and then she laughed and stated that it was not true. When the detective repeated the question, the daughter paused again, and then she shook her head "no." Despite this denial, the Office of Children's Services found cause to believe that Bragg was sexually abusing his daughter, and the daughter was removed from Bragg's home and placed with relatives.

While Bragg's daughter was living with these relatives, she disclosed to an adult friend that she was "dating" Bragg. The adult friend recorded this conversation on his mobile phone, and the conversation was reported to the Office of Children's Services. This report led to a second police interview by the same detective. At this second interview, the daughter admitted that she was having sexual relations with Bragg.

The detective who conducted both interviews was called as a witness at the grand jury hearing. The prosecutor asked the detective whether Bragg's daughter made "any disclosures of sexual abuse" during the first interview. The detective answered, "She did not." The detective then explained that the daughter did not tell the police about her sexual relations with Bragg until the second interview. The grand jury later heard from the daughter, who testified directly about the sexual abuse.

After Bragg was indicted, Bragg's defense attorney filed a motion to dismiss the indictment under Frink . According to the defense attorney, there was an important difference between telling the jury that Bragg's daughter had "fail[ed] to disclose" any sexual abuse in the first interview as opposed to telling the grand jury that Bragg's daughter had affirmatively denied the sexual abuse in the first interview. The defense attorney argued that the prosecutor was required to make this distinction clear because the daughter's contradictory responses in the two interviews cast doubt on her overall credibility. The superior court denied the motion to dismiss the indictment, ruling that the prosecutor had complied with her duty to provide exculpatory evidence under Frink .

We agree with the superior court that the prosecutor complied with her obligations under Frink . Importantly, the prosecutor did not hide the fact that the victim had provided inconsistent responses in the two interviews. Instead, the prosecutor directly elicited this fact from the detective who conducted both interviews. Although Bragg criticizes the manner in which the prosecutor elicited this evidence, the prosecutor was not required to do more than what she did. It is enough that the prosecutor pointed out the inconsistency to the grand jury; she was not required to take the additional step of trying to impeach the victim's credibility, as Bragg appears to believe was required.

Moreover, whatever distinction might exist between the prosecutor's characterization of the first interview as a "failure to disclose" sexual abuse rather than an affirmative denial of the sexual abuse is not significant in this context. What matters is that the prosecutor informed the grand jury of the salient fact that there had been two interviews with Bragg's daughter and the sexual abuse was not disclosed until the second interview. Had the grand jury wanted to know more about the two interviews, they had sufficient information from which they could do so. They likewise had sufficient information to question Bragg's daughter about her inconsistent responses if they had questions about her credibility after hearing her grand jury testimony. Because the grand jury was given the information it needed to fulfill its obligations under Criminal Rule 6(q), we agree with the superior court that the prosecutor complied with her duty under Frink , and we find no merit to this claim of error.

Bragg's claim that the court committed plain error by failing to instruct the jury on the need for factual unanimity

Bragg argues that the trial court erred in failing to instruct the jury that their verdict on Count I had to be based on a different incident than its verdict on Count II. We agree with the State that this claim is meritless. The record shows that the trial court instructed the jury that the two counts were based on two separate incidents of abuse, and that the jurors had to unanimously agree on the conduct underlying each count. In addition, any remaining ambiguity on this matter was sufficiently clarified by both parties in their closing arguments.

Conclusion

The judgment of the superior court is AFFIRMED.

      AS 11.41.434(a)(2).

      Frink v. State , 597 P.2d 154 (Alaska 1979).

      Id.

      Id. ; see also ABA Standards for Criminal Justice: Prosecution and Defense Functions § 3-1.2(b) (4th ed. 2015) ("The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.").

      See Alaska Const. art. I, § 8 ("No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury...."); AS 12.80.020 ; Alaska R. Crim. P. 7(a) (providing that felony offenses "shall be prosecuted by indictment, unless indictment is waived").

      Cameron v. State , 171 P.3d 1154, 1156 (Alaska 2007) (quoting Frink , 597 P.2d at 165 ).

      Alaska R. Crim. P. 6(q) (emphasis added).

      Frink v. State , 597 P.2d 154, 165 (Alaska 1979) (explaining that the "requirement that the prosecutor present exculpatory evidence to the grand jury is implicit in the mandate of Criminal Rule 6(q)").

      Id. at 166 ; see also Preston v. State , 615 P.2d 594, 602 n.21 (Alaska 1980) ; Rogers v. State , 232 P.3d 1226, 1244 (Alaska App. 2010) ; Hurn v. State , 872 P.2d 189, 191 (Alaska App. 1994).

      Frink , 597 P.2d at 166.

      See, e.g. , Cathey v. State , 60 P.3d 192, 195 (Alaska App. 2002) (describing exculpatory evidence as evidence that "tends, in and of itself, to negate the defendant's guilt") (internal citations omitted).

      Frink , 597 P.2d at 166 ; Preston , 615 P.2d at 602 n.21 ; Rogers , 232 P.3d at 1244 ; Hurn , 872 P.2d at 191.

      See Riley v. State , 60 P.3d 204, 208 (Alaska App. 2002) (explaining that the Court has "repeatedly held that ambiguities and potential flaws in jury instructions can be cured by the arguments of the parties").


text:
    Jesus Alberto CARDENAS, Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12470
    Court of Appeals of Alaska.
    November 9, 2018
    Jane B. Martinez, Law Office of Jane B. Martinez, LLC, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
    Timothy W. Terrell, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge ALLARD.

Jesus Alberto Cardenas was the driver of a car that was stopped for reckless driving. During the traffic stop, the officer asked Cardenas whether he had any guns in his vehicle. Cardenas replied in the affirmative, and moved his body and hands towards the back seat, where a black fabric rifle case was sitting. The rifle case was fully zipped up and lying on the back seat behind the passenger seat, outside Cardenas's immediate reach.

The officer ordered Cardenas to keep both of his hands on the steering wheel. Cardenas complied with this request, and he remained polite and cooperative throughout the traffic stop. The officer decided to secure the rifle case while he ran Cardenas's registration and identification through the system. After telling Cardenas what he planned to do, the officer took the black soft-sided rifle case from the back seat and carried it to his patrol car.

After getting into his patrol car, the officer opened the rifle case and conducted a thorough search of its contents, opening the smaller compartment of the rifle case first. In this smaller compartment, the officer found an Airsoft pellet gun, a wad of cash, a box of plastic baggies, and several plastic bags with a white powdery substance that was later determined to be cocaine. The officer then opened the larger part of the rifle case and found an unloaded assault rifle and a magazine of ammunition.

After discovering the drugs and weapons in the rifle case, the officer radioed for backup. After the backup arrived, the officers arrested Cardenas. A subsequent search of Cardenas's vehicle pursuant to a search warrant revealed additional drugs - methamphetamine and cocaine - in the car.

Cardenas later moved to suppress all of this evidence arguing that the seizure and search of his rifle case was unlawful. The superior court denied Cardenas's suppression motion, concluding that both the seizure and the search of the rifle case were justified under the "officer safety exception to the warrant requirement."

Following the denial of his motion to suppress, Cardenas waived his right to a jury trial and agreed to a bench trial on stipulated facts. At trial, the judge acquitted Cardenas of third-degree misconduct involving a controlled substance (possession of methamphetamine with intent to deliver), but convicted him of the lesser-included offense of fourth-degree misconduct involving a controlled substance (possession of methamphetamine). The judge also convicted Cardenas of second-degree weapons misconduct (for possessing a gun during the commission of a drug offense) and third-degree misconduct involving a controlled substance (possession of cocaine with intent to deliver).

Cardenas now appeals, arguing that the superior court erred when it denied his motion to suppress. For the reasons explained here, we agree with Cardenas that the search of his rifle case was unlawful, and we therefore reverse his convictions.

Why we conclude that the officer's search of the rifle case was unlawful

Whether a search is lawful is a mixed question of fact and law. On appeal, we review the trial court's factual findings for clear error, but we independently review whether those facts provided a justification for the challenged search.

Here, the facts are largely undisputed. The parties agree that the traffic stop was lawful and that the stop was not yet complete when the search of the rifle case occurred. The parties also agree that, with the exception of the initial body movement towards the rifle case that alarmed the officer, Cardenas was fully cooperative during the traffic stop.

Thus, the primary question for us to decide in this appeal is whether these facts provided a reasonable basis for the officer's seizure and subsequent search of the rifle case.

In Michigan v. Long , the United States Supreme Court held that police officers who are performing a traffic stop may conduct a limited search of the vehicle for weapons if the circumstances give the officers reasonable suspicion that the driver or another occupant of the vehicle "is dangerous and ... may gain immediate control of weapons." As the Supreme Court explained,

[w]hen [an] officer "has a reasonable belief that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it [is] unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and[, if so,] to neutralize the threat of physical harm."

The State contends that this exception applies here because the officer knew that Cardenas had access to a gun and the officer had reason to believe that Cardenas might use this gun against the officer based on Cardenas's initial movement, which "concerned" the officer. In its briefing on appeal, the State focuses its arguments primarily on the officer's initial seizure of the rifle case. According to the State, once the officer became aware of the rifle, the officer was justified in removing the rifle case from Cardenas's reach to ensure his own personal safety while he completed the remainder of the traffic stop. But even assuming that the officer was entitled to take reasonable steps to ensure that the rifle was not within Cardenas's immediate reach and that these reasonable steps could include seizing the case, this could still be accomplished without opening the closed rifle case.

The State argues that, once the case was lawfully seized, the search of the rifle case was justified under the "single-purpose" container exception articulated in Arkansas v. Sanders. Footnote 13 of Arkansas v. Sanders states:

Not all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment. Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support a reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to "plain view," thereby obviating the need for a warrant.

The State interprets this language to mean that an officer is always entitled to open a rifle case if it is identifiable as a rifle case.

This is a misinterpretation of the "single-purpose" container exception. Like the "plain view" doctrine on which it is based, the "single-purpose" container exception applies when the incriminating nature of the container's contents is immediately apparent. An officer is entitled to seize items that are in plain view if their contraband nature or evidentiary significance is apparent. But a person's expectations of privacy in their personal belongings does not automatically disappear simply because the internal contents of a closed container are apparent from its outside appearance. Thus, for example, an officer is not entitled to open and search a person's computer case simply because the case is immediately identifiable as containing a computer, if the person's possession of the computer is not itself incriminating.

Here, there was nothing obviously unlawful about Cardenas's possession of a rifle. Unlike other situations where such searches have been upheld, there was no indication that Cardenas was prohibited from carrying a firearm. Nor was there any reason to suspect that the firearm had been stolen or that Cardenas's possession of the firearm was otherwise unlawful. Thus, contrary to the State's assertion, the single-purpose container doctrine does not justify the search that occurred here.

The search was also not justified by officer safety concerns. At the evidentiary hearing, the officer testified that he opened the rifle bag for three reasons: (1) he wanted to be sure the gun Cardenas told him he had in the car was in fact in the rifle case; (2) he wanted to unload and secure the rifle to ensure that he was not shot by Cardenas; and (3) he wanted to determine what kind of gun was in the case. As the superior court recognized, the third reason was obviously faulty. The officer's curiosity as to what type of gun Cardenas owned was irrelevant to whatever safety concerns existed. But the other two reasons were also faulty. Cardenas told the officer that he had a gun in the back seat, and he gestured towards the rifle case. It was not necessary for the officer to open the rifle case to confirm that the gun existed. There was also no need to open the rifle case to ensure that the rifle was no longer within Cardenas's reach. The officer had already isolated Cardenas from the rifle case by removing it from the car.

In the proceedings below, the trial court speculated that, as a matter of gun safety, the officer may have wanted to check to make sure the rifle was unloaded before he moved it. But the officer apparently did not have these safety concerns when he transported the closed rifle case to his patrol car before he opened it. Moreover, these gun safety concerns (to the extent they existed) could have been addressed by securing the rifle case in the trunk of the car or by requesting Cardenas to step out of the car. This was not a situation where the officer had to secure a gun that had been discarded or that otherwise posed a threat to public safety.

In its brief, the State highlights the inherent dangerousness of traffic stops and the fact that this officer was working alone without any back up. We acknowledge this inherent danger and the increased concern for officer safety once the officer becomes aware that the driver (or an occupant) of the vehicle may have access to a firearm or other deadly weapon. But as Cardenas points out, it is not unusual for Alaskans to carry guns, and it is not unusual for a gun to be in a vehicle. Here, the record shows that Cardenas's actions were consistent with the actions of a responsible gun owner. Cardenas secured his gun inside a closed rifle case and he placed the rifle case on the back seat of his car, outside his immediate reach. Cardenas notified the officer of the existence of the gun at the beginning of the traffic stop, and he cooperated with all of the officer's requests. It is undisputed that, other than his initial movement towards the rifle case, Cardenas gave the officer no reason for concern. Furthermore, the officer did not have probable cause to believe that the gun case contained contraband or evidence of a crime.

Given these circumstances, we conclude that the officer had no authority to open and search the rifle case. Even assuming that the officer's seizure of the case was justified, the subsequent opening and search of the closed rifle case was not.

Conclusion

The judgment of the superior court is REVERSED.

      Former AS 11.71.040(a)(3)(A)(ii) (pre-2016 version). The current judgment incorrectly states that Cardenas was convicted of third-degree misconduct involving a controlled substance.

      AS 11.61.195(a)(1).

      Former AS 11.71.030(a)(1) (pre-2016 version).

      Wilburn v. State , 816 P.2d 907, 911 (Alaska App. 1991).

      Id.

      Michigan v. Long , 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

      Id. (quoting Terry v. Ohio , 392 U.S. 1, 24, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ).

      Arkansas v. Sanders , 442 U.S. 753, 764 n.13, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979), abrogated on other grounds by California v. Acevedo , 500 U.S. 565, 579-80, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) ; see also United States v. Meada , 408 F.3d 14, 23 (1st Cir. 2005) ("Although a person generally has an expectation of privacy in items he places in a closed container, some containers so betray their contents as to abrogate any such expectation.").

      See 3 Wayne R. LaFave, Search and Seizure § 5.5(e), at 340-41 (5th ed. 2012) ("[T]he rule appears to require (i) a high degree of certainty about the contents of the container, (ii) ascertained from the nature of the container itself."); Ambrose v. State , 221 P.3d 364, 367 (Alaska App. 2009) (officer was justified in opening bindle because it was immediately recognizable as a single-purpose package used to carry illegal drugs); see also Reeves v. State , 599 P.2d 727, 738-39 (Alaska 1979) ; Howard v. State , 209 P.3d 1044, 1050 (Alaska App. 2009) ; McGuire v. State , 70 P.3d 1114, 1116-17 (Alaska App. 2003).

      See Daygee v. State , 514 P.2d 1159, 1162 (Alaska 1973) ; Reeves , 599 P.2d at 738 ; 2 Wayne R. LaFave et al., Criminal Procedure § 3.7(f), at 297 (3d ed. 2007) ("An object may not be seized from a car merely because the police plain view of it was lawfully acquired; there must be probable cause that the object is a fruit, instrumentality or evidence of crime. And under the 'immediately apparent' requirement ... this probable cause must be determined without examination of the object other than is justified by the purpose underlying police entry of the vehicle.").

      Alaska law places few restrictions on firearm ownership, and does not require permits for possession of most guns. See AS 11.61.190 -.220. State law allows guns to be carried and stored in vehicles. AS 18.65.800.

      Compare United States v. Meada , 408 F.3d 14, 23-24 (1st Cir. 2005) ("What justified the search of the gun case was that it reasonably appeared to contain a gun and that, as a convicted felon, Meada was prohibited from possessing one. Given that reasonable appearance, the fact that, upon opening and careful inspection, the gun case might turn out to contain something other than a gun was irrelevant."), with United States v. Villarreal , 963 F.2d 770, 776 (5th Cir. 1992) (holding that drums labeled as phosphoric acid but actually filled with marijuana could not be searched without a warrant under the single-purpose container exception because phosphoric acid is not associated with criminal activity).

      See AS 11.61.220(a) (defining fifth-degree weapons misconduct as including, inter alia , possession of a loaded firearm in a bar; possession of a firearm by an unemancipated minor who has not obtained consent by a parent or guardian; and knowing possession of a firearm on the grounds of a child care facility, in a courtroom, or in a domestic violence shelter).

      See Arizona v. Gant , 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (tying the justification for vehicle searches to the occupant's ability to reach evidence contained in the vehicle).

      See Cady v. Dombrowski , 413 U.S. 433, 447-48, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973) (finding police officer's opening of car's trunk without warrant did not violate Fourth Amendment because officer reasonably believed trunk contained gun, trunk was vulnerable to intrusion by vandals, and public might be endangered if intruder removed gun); United States v. Webb , 83 F.3d 913, 917 (7th Cir. 1996) (deciding that exigent circumstances allowed officer to retrieve shotgun from car trunk with keys still in the lock because gun could have been easily retrieved and officer feared gun's safety mechanisms might not have been activated, allowing gun to accidentally discharge); United States v. Ware , 914 F.2d 997, 1000-01 (7th Cir. 1990) (exigent circumstances permitted officer to search car for gun because it was either in car or had been discarded by defendant, and as such, might fall into untrained or malicious hands); United States v. Feldman , 788 F.2d 544, 553 (9th Cir. 1986) (finding that inventory search of car done in violation of police policies was lawful because officer reasonably suspected that car contained gun and search was reasonable to ensure the immediate protection of the public's safety).

      Cf. AS 11.61.220(a)(1)(A)(i) (requiring a person who is carrying a firearm concealed on their person to immediately inform a peace officer of the firearm when contacted by the peace officer for an official purpose).

      Cf. AS 11.61.220(a)(1)(A)(ii) (requiring a person who is carrying a firearm concealed on their person to allow a peace officer to secure the weapon for the duration of their contact with the peace officer).

      See California v. Acevedo , 550 U.S. 565, 580 (1991).


text:
    Thomas Leonard MASSEY Jr., Appellant, v. STATE of Alaska, Appellee.
    Court of Appeals No. A-12271
    Court of Appeals of Alaska.
    November 9, 2018
    Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
    Eric A. Ringsmuth, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
    Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge.

      Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).

   Judge ALLARD.

Thomas Leonard Massey Jr. was charged with second-degree escape for leaving the halfway house where he had been placed by the Department of Corrections. Prior to trial, Massey requested multiple representation hearings because he was unhappy with his appointed counsel. At the final pretrial representation hearing, Massey asked to waive his right to counsel and to represent himself. The judge presiding over this pretrial hearing told Massey that he would give him time to think about this decision, and that the court would address Massey's self-representation request at the next pretrial hearing. But at the next hearing, when Massey renewed his request to represent himself, the judge did not conduct the promised self-representation inquiry-and when Massey tried to object, the judge would not let him personally address the court.

Later, at the trial call in Massey's case, held in front of a different judge, Massey again tried to renew his request to represent himself. This second judge told Massey (mistakenly) that the first judge had already resolved this issue. When Massey personally protested that this was not the case, the court ignored Massey's protests and Massey's attorney did not pursue the matter further. Massey's case proceeded to a bench trial (with Massey represented by counsel), and Massey was convicted.

In the present appeal, Massey argues that he was denied his right of self-representation. The record shows that Massey clearly and unequivocally invoked his right of self-representation, but he never received the self-representation hearing to which he was entitled. We therefore reverse his conviction.

Background facts

On December 2, 2012, Massey was arrested on charges of theft and resisting arrest. Massey could not obtain release on bail, and the Department of Corrections transferred him from the Anchorage jail to the Cordova Center, a halfway house. The next day, Massey was reported missing from the Cordova Center. He was located and arrested four months later, and charged with escape.

The Public Defender Agency was appointed to represent Massey, but Massey became dissatisfied with the agency's representation, and he repeatedly asked for another attorney. Superior Court Judge Michael L. Wolverton, who presided over the pretrial hearings in Massey's case, denied each of Massey's requests for substitute counsel.

At the final pretrial representation hearing, held on August 4, 2014, after Judge Wolverton again denied Massey's request for a new lawyer, Massey asked, "Can I go pro se?" When Judge Wolverton asked Massey, "Do you want to represent yourself?" Massey answered, "Yes. Yes, Your Honor."

Judge Wolverton told Massey that he would give him some additional time to think about whether he wanted to represent himself. Massey answered that he wanted to represent himself, and that the court could hold the inquiry right then. Judge Wolverton told Massey that they would talk about his request for self-representation at the pretrial conference scheduled for two days later, on August 6, 2014.

This pretrial conference was delayed for three weeks, until August 27. When Massey's case was called at this pretrial conference, his attorney told Judge Wolverton that Massey was renewing his request to represent himself. But instead of taking up Massey's request, as he had promised, the judge ignored Massey's request and instead began questioning the attorneys if they were ready for trial. Both of the attorneys indicated that they were ready. Massey tried to personally interject, but was not allowed to speak.

One week later, at a trial call held on September 2 in front of Superior Court Judge Philip R. Volland, Massey's attorney noted that Massey had requested to represent himself, and the attorney told Judge Volland that it was not clear "[whether] Judge Wolverton ever made a final determination on that." Massey also told Judge Volland that he thought he "was going to be able to represent [him]self," and that he was not yet ready for a trial.

When Judge Volland went to examine the record of the August 4 hearing, he found that it was sealed (because it was a representation hearing). Rather than reviewing the contents of this sealed proceeding, Judge Volland instead relied on the written notations found on the sealing envelope-notations which stated, "Finds no basis, [assistant public defender] to remain as counsel of record."

These notations described Judge Wolverton's ruling that Massey was not entitled to dismiss his public defender and have the court appoint substitute counsel-the ruling that led Massey to ask whether he could represent himself. But Judge Volland misinterpreted the notations: he thought they referred to a ruling by Judge Wolverton denying Massey's request to represent himself.

Based on this mistaken interpretation of the notations, Judge Volland told Massey that Judge Wolverton had already ruled that Massey could not represent himself. Judge Volland made clear that he was not going to reopen that issue.

Massey's attorney did not correct Judge Volland's mistaken understanding of the record. Massey personally tried to alert Judge Volland to his mistake, declaring that he "[had] been waiting for ... [a] judge to decide whether I was going to be able to represent myself." But Judge Volland told Massey that Judge Wolverton had already ruled on his request, that it was too late to change things, and that the Public Defender Agency would remain his attorney.

Massey proceeded to a bench trial before Superior Court Judge Michael R. Spaan, and he was convicted of second-degree escape.

At another hearing prior to his sentencing, Massey complained that he had repeatedly tried to represent himself, and that he had been repeatedly ignored. Judge Spaan told Massey that he had preserved this point for appeal.

Massey now appeals.

Massey was denied his right to knowingly and intelligently waive counsel and represent himself at his trial

In Faretta v. California , the United States Supreme Court held that criminal defendants have a right under the Sixth Amendment to represent themselves. The right of self-representation is also protected by the Alaska Constitution. In McCracken v. State , the Alaska Supreme Court declared that, at the time the Alaska Constitution was enacted, "the right of self-representation was so well established that it must be regarded as a right 'retained by the people.' "

Although criminal defendants have both a right to the assistance of counsel and the right to represent themselves, the right to counsel remains dominant. Thus, courts must provide an indigent defendant with counsel unless the defendant "clearly and unequivocally declare[s] his desire to proceed without an attorney."

If, however, a defendant clearly and unequivocally invokes their right to represent themself, then the court is required to conduct an inquiry to ascertain the defendant's intentions and the defendant's capacity to represent themself.

Before allowing a defendant to give up their right to counsel, the court must ensure that the defendant's waiver of counsel is knowing and intelligent. This includes ensuring that the defendant understands their right to counsel, the important advantages of having counsel, and the dangers and disadvantages of self-representation. The court must also ensure that the defendant is minimally capable of defending themself in a "rational and coherent manner."

Here, the record shows that Massey made clear, unequivocal requests to represent himself, beginning at the August 4, 2014 hearing. At that August 4 hearing, Judge Wolverton promised that he would conduct the required self-representation inquiry at Massey's next pretrial hearing. But this never happened. Instead, whenever Massey tried to raise this issue again, neither Judge Wolverton nor Judge Volland would listen to him.

The State concedes that Massey never received the self-representation inquiry that he asked for. However, the State argues that Massey's requests for self-representation were not "clear and unequivocal."

It is true that Massey's requests to represent himself were often intertwined with Massey's statements that he was dissatisfied with his attorney and that he wanted the court to appoint a different lawyer to represent him. Based on this, the State argues that Massey's case is an example of the type of request for self-representation that we described in Johnson v. State -an instance where the request for self-representation "appears on its face to be unequivocal," but where "the record as a whole shows that the seemingly unequivocal request is in fact tentative."

We disagree with the State's reading of the record. As we have previously explained, the fact that a defendant makes a request for self-representation only because the court refuses to appoint substitute counsel does not make the request equivocal. Although the record shows that Massey would have preferred to have the court appoint a different attorney to represent him, Massey made it clear that if the court was not going to do that, then Massey would prefer to represent himself, rather than continue with his current lawyer.

We note that Judge Wolverton obviously thought that Massey had made a clear and unequivocal request for self-representation-because the judge promised that he would take up the matter of self-representation at the very next hearing. For reasons that are not clear, the judge later refused to do so. But the record is otherwise sufficiently clear that Massey repeatedly tried to assert his right of self-representation and that he tried to alert both Judge Wolverton and Judge Volland that he had never received the self-representation inquiry he had been promised.

Because of this, Massey's case bears little resemblance to the cases relied on by the State in its briefing-cases that all involved defendants who vacillated between their options, or who showed only a passing interest in representing themselves.

Because Massey unequivocally requested to represent himself, he was entitled to a hearing where his intention could be verified, and where his capacity for self-representation could be assessed. But despite Massey's repeated requests, this self-representation hearing never took place-and, ultimately, Massey was forced to go to trial represented by counsel. In these circumstances, the superior court's refusal to hold a hearing on Massey's request for self-representation was a structural error that requires reversal of his conviction.

Conclusion

We REVERSE the judgment of the superior court.

      Faretta v. California , 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

      McCracken v. State , 518 P.2d 85, 91 (Alaska 1974).

      Id.

      Knix v. State , 922 P.2d 913, 918 n.6 (Alaska App. 1996).

      Johnson v. State , 188 P.3d 700, 703-04 (Alaska App. 2008).

      See James v. State , 730 P.2d 811, 813-814 (Alaska App. 1987) ; McCracken , 518 P.2d at 91-92 ; see also Buhl v. Cooksey , 233 F.3d 783, 794 (3d Cir. 2000) ; United States v. Balough , 820 F.2d 1485, 1487-88 (9th Cir. 1987).

      James , 730 P.2d at 813 (citing Faretta v. California , 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ).

      Shorthill v. State , 354 P.3d 1093, 1109 (Alaska App. 2015) (citing James , 730 P.2d at 813-14 ).

      James , 730 P.2d at 813 (citing McCracken v. State , 518 P.2d 85, 91 (Alaska 1974) ); see also Shorthill , 354 P.3d at 1109 (citing Ramsey v. State , 834 P.2d 811, 814 (Alaska App. 1992) ; Burks v. State , 748 P.2d 1178, 1180, 1183 (Alaska App. 1988) ).

      Johnson v. State , 188 P.3d 700, 704 (Alaska App. 2008).

      See Cook v. State , 2004 WL 719771, at *7 (Alaska App. Mar. 31, 2004) (unpublished) ("Within the range of choices that were legally available, Cook's decision was unequivocal. There was no ambiguity in Cook's waiver of his right to counsel."); see also State v. Jordan , 305 Conn. 1, 44 A.3d 794, 809 (2012) (requesting self-representation as an alternative to substitute counsel does not make request equivocal).

      See, e.g. , Fields v. Murray , 49 F.3d 1024, 1033-34 (4th Cir. 1995) (defendant sent three different letters to judge, one of which included a request to proceed pro se, but defendant did not renew request at the court hearing which was set to discuss the letters); Cross v. United States , 893 F.3d 1286, 1291 (11th Cir. 1990) (despite initial statement that seemed like an unambiguous request for self-representation, defendant's later statements made clear that he only wished permission to act as co-counsel); State v. Carter , 200 Conn. 607, 513 A.2d 47, 50-51 (Conn. 1986) (ambiguous requests for self-representation not renewed after explanations provided for trial procedures and opportunities given to consult with counsel); People v. Tena , 156 Cal. App. 4th 598, 606-08, 67 Cal.Rptr.3d 412 (2007) (defendant's momentary comments about going "pro per" were, considering the record as a whole, simply "impulsive reactions" based on the defendant's frustrations with his attorney); Johnson , 188 P.3d at 703-04 (defendant did not renew request for self-representation after being told he could personally address court at sentencing and his original comment was deemed to be simply "thinking out loud" about the possibility of proceeding pro se).

      See McKaskle v. Wiggins , 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of the right of self-representation is not amenable to harmless error analysis); Jordan , 44 A.3d at 811 (holding that the trial court erred by failing to hold a hearing after defendant clearly and unequivocally requested to represent himself, and that error was structural error, requiring automatic reversal of defendant's conviction).