Burks v. State

C.J., BRYNER, Before COATS and SINGLETON, JJ.

OPINION SINGLETON, Judge.

F.L. Burks robbery was convicted of degree. 11.41.500(a)(1). first AS He permitted was himself with advisory appeal, counsel. On Burks raises objections conviction, a number of to his which, view, requires one of in our a re- mand. We will discuss briefly each of the issues Burks raises.

Burks first contends that the court delaying ruling application erred on his from the indigent, record that Burks was and that appointed public defender sought Burks him. to dis- charge public A defender. decision on request delayed, pending Burks’ a de- competency. termination of his Burks disagree. claims was error. We obligated The trial deter competency per mine a defendant’s before mitting See, e.g., the defendant to be tried. 12.47.100(b). There was substantial ev idence in the from which record the trial competen court could have Burks’ doubted Therefore, cy. did not abuse ruling delaying its discretion in on Burks’ discharge attorney motion to until the question competency of Burks’ was satis See, factorily e.g., resolved. Annas v. App.1986). argues Burks next that he was tried in violation of Alaska Rule of Criminal that, taking Procedure 45. He claims into periods all excluded properly account time, days more than trial occurred from the The Rule date of his arrest. period issue turns on of time competency. determine Burks’ competency put to stand trial first into Jungreis, Anchorage, appel- Michael for January on when his lant. public defender moved court-ordered Bacon, Gen., Atty. D. competency hearing Robert Asst. Office examination. At a on motion, Special Appeals, Prosecutions An- Burks that he did indicated examination, chorage, Berg Schaible, Atty. competency and Grace wish wished Gen., Juneau, appellee. discharge public repre- defender and 1987). regard, examination ambig

sent the record is scheduled over Burks’ was nevertheless ob- uous. A of this court has there majority competency hearing The final jection. fore concluded that the case must re D. before Victor Carlson on held manded to the trial court for find further argues May that this time ings of fact and conclusions of law to deter against should have been counted the state mine rep whether Burks was he did not authorize his himself, resent whether and he waived his competency defender to raise issues and right to counsel. objected to the examination. We are un- Carlson, Judge Both pretrial judge, by argument. persuaded Gonzalez, Judge and J. Rene the trial We this case are satisfied that was tried judge, question addressed of Burks’ conformity in Criminal Rule competency to waive counsel and Burks’ competency Whether the issue of appears Judge that Carlson counsel, by court-appointed raised was concluded that Burks could not or sponte, court sua Burks’ own supports The record this conclu- to counsel and him- efforts waive sion, conclusion, Judge and based on that self, we are satisfied that the time neces- Burks, require objec- Carlson could over his sary competency to determine Burks’ was tion, properly State, represented by Stobaugh public excluded. See v. de- (Alaska 767, 1980) (time P.2d 614 769-70 Annas, fender at trial. See 726 P.2d at necessary to resolve defense counsel’s mo- contrast, Judge 557. In Gonzalez seems to pro- tion to withdraw constituted “other concluded, despite have substantial reser- defendant,” ceedings concerning the ex- vations, competent rep- that Burks was pursuant Criminal cludable Rule Judge resent himself. Gonzalez’s conclu- 45(d)(1)). competency Since Burks’ was at sions, however, ambiguous. are somewhat 10, January to May issue possible to construe the record 1985, properly this time was excluded. Judge effect that Gonzalez found Burks Therefore, we hold that case was tried incompetent, per- nevertheless conformity with Criminal Rule 45. that, suaded defender as a argues Burks next that there was Burks, law, not, matter competent adequate finding competency no had the he himself if Judge stand trial. While Carlson See, e.g., wished to do so. Faretta v. Cali- competency, had doubts 806, fornia, 835, 2525, 422 U.S. 95 S.Ct. there was sufficient evidence the record 2541, (1975); 45 L.Ed.2d 562 McCracken v. support compe that 85, State, (Alaska 1974). 518 91 P.2d Moreover, Judge tent. cases, however, reading those Carlson, in psychiatric reliance on testimo too broad. Both Farretta and McCracken ny, concluded that Burks proposition stand for the See, State, trial. stand v. 512 e.g., Sekade only permit self-representation can 1973) 907, (Alaska (when psychiat P.2d defendant, (1) having it finds that the yields pro ric examination of the defendant knowingly, intelligently, and findings fessional trial, counsel, (2) voluntarily stand waive does waive evidentiary whether to counsel, hold further hear assistance of and least ings is addressed to discretion of trial presenting minimally capable a coherent court). jury. case to the The cases are clear that law, standing ignorance the defendant’s argument Burks’ final is that couid; alone, preclude self-representation. will not him failed to of the disad inform capacity, lacks the Where the defendant vantages per before presentation, to make a coherent mitting him himself. See require v. that the defend- App. James the trial court can 730 P.2d Annas, represented by counsel.1 himself under the ant be standards enunciated in Faretta and McCracken and may appoint elects do that the court dissenting opinion, Judge In his advisory counsel. Wig- See McKaskle v. Judge un concludes that Coats gins, 465 U.S. 104 S.Ct. Burks was equivocally found that (1984). L.Ed.2d 122 knowingly intelligently waiving his a remand We believe in or- view, Judge Coats’ to counsel. clarify der for Gonzalez to his rul- equated erred ings. are retrospective We satisfied that a rights competence to with the waive competence, determination of to the limited self-representation. See Dolchok v. necessary, appropriate extent in this case (Alaska 1982) (Su State, 639 P.2d because the record contains substantial adopt preme Court of Alaska disinclined to contemporaneous psychiatric psycho- separate compe for determination of tests logical regarding Burks, information i.e., tency plead, rights, to waive Judge Judge both Carlson and trial). agree competency to stand We with hearings regarding held extensive Burks’ Judge person compe may Coats that a be right right to counsel and self-represen- in tent to aid his own defense and therefore Dolchok, (ap- tation. 639 See P.2d at 293 competent right to waive his to counsel parently approving retrospective determi- but, nevertheless, incompetent to contempora- nation of a when himself under the Faretta and McCracken purpose neous record is sufficient for that incapable standards of is mak made). and no initial determination was ing intelligible, presentation. an coherent convinced, however, Judge are not We We therefore remand this case to the unequivocally findings found that Burks trial court for additional and con- waiving incapable rights particular, was either of clusions. In trial the court incapable Burks, (1) or of himself at tria should determine whether trial, (2) appointment competent l.2 We stress that of stand a stand executed by counsel, (3) appointed constitutionally counsel is not a substitute for valid waiver person knowing intelligent counsel where a is of made a waiver making right representation by a constitutional waiver of counsel. his defender, 18.85.100(a)(1) only person a when is first found see AS and AS 18.- capable right 85.140,3 waiving competent proceed counsel ground may Judge an alternate Coats be correct that Gonza- indicates 1.Faretta denying self-representation. rulings ques- If the trial court lez never reconsidered his earlier himself, convinced the defendant's behavior that the tioning defendant, regardless competence, will not permitted him to do so under the mistaken obey governing presenta- reasonable rules so, legal right belief that Burks had a to do decorum, tion evidence and courtroom so, competent or not. If Burks is entitled to a may disqualify court an otherwise however, ambiguous, new trial. The record is individual from in order to support finding Judge Gonza- and would proceed. enable the trial to Given the substan- lez, having opportunity had further to observe placed right self-representa- tial value tion, on the Burks, rulings his earlier and im- reconsidered authority only in this should be exercised plicitly that Burks was concluded cases where a defendant has demonstrat- waive counsel and unwillingness comply ed an with reasonable acting have been within his Gonzalez would regulations. recognize rules and We that the in discretion if he resolved reasonable doubts intransigence incompetence line between permitting self-representation. favor of This that, case, sometimes hard to in draw and this ambiguity should be resolved on remand. professionals mental health were uncertain as mentally simply to whether Burks was manipulative. ill or right representation by public defend- 3. The many In cases a defendant's provided by er is which reads in will, transigence light when in of the evaluated part: circumstances, totality of the lead a trial court Right Representation, Services and Facili- incompetence. Perhaps Judge to find Carlson (a) indigent being finding. ties. An who made such a It could be sustained on finding apparently officer in con- this record. Such a detained a law enforcement by Judge made Gonzalez. nection with a serious crime is entitled ... making himself, pro yet the latter determina- him se. allowed to do reversal tion, should review record and case. possessed a suf- determine whether of when a defendant can understanding of the benefits and ficient represent himself seems occurring to be waiving detriments counsel order to increasing frequency in the trial intelligently exercise a be able to choice. risk oversimplifying, per- courts. At the We leave to discretion of haps helpful gave I would my to consider additional evidence whether impression essence cases in hearing in order hold an additional to deter- this area. Dolchok, mine issues. 639 P.2d these defendant has the jurisdiction 292-94. will retain to con- We California, Faretta v. 422 U.S. compe- claims sider Burks’ 95 S.Ct. 45 L.Ed.2d

tency, of the pending (1975); McCracken v. court. (Alaska 1974). The decision part is AFFIRMED in and RE- defendant, however, exercise MANDED to the trial court always additional cases, almost a bad one. The findings. recognize seem of a decision;

defendant to make a they bad permit judicial him to choose J., to commit COATS, dissents. by defending suicide himself. The court COATS, Judge, dissenting. duty has a to make sure I I from the find that must con- dissent who wishes to fully himself is majority clusion the that this of case dangers aware of of the findings. should be remanded for further and of the of having attorney. benefits an found Burks was in- that Because a decision a defendant to exer- capable knowingly intelligently of and right cise this is usually such a bad decision waiving right his to This counsel. generally and is so disruptive proper to the supported by is the Yet record. judicial function of process, the Gonzalez allowed Burks to conduct his own court must make sure that a defendant judge defense. Because the trial found who to chooses himself knows representing doing.1 that judge Burks what he is The trial should represented by attorney jury. to be an to the fense to the court or a aIf person retaining attorney same as a an extent right defendant makes valid waiver his to counsel, is entitled.... give the trial court the should defend- right Waiver of the to a defender’s ant the benefit the doubt the de- governed by assistance ability which presenta- fendant's to make a coherent provides: convinced, however, tion. If the court is person appropriately who has been in- the defendant cannot himself coher- may formed under AS 18.85.100 writing, waive in ently, regard- appointed then counsel must be record, any right provid- other Annas, objections. less of the defendant’s See concerned, chapter, ed this if the case, 726 P.2d at 557. In such a counsel must waiver, the time of or after finds of record appointed Ap- be to the defendant. that the has full acted with awareness pointment advisory counsel insufficient. person’s rights consequences of the and of the of a waiver. The court shall consider such Justice, 1. I Standards Criminal § 6-3.6 com- education, person’s age, the factors as famil- (2d. 1982) (footnotes mentary at 6.39-40 ed. iarity English language with the and the com- omitted) states: plexity making the crime involved the circumstances, Except in most unusual finding. unrepresented by trial in which one side is guilt. 4. When judge counsel is a farcical effort ascertain a trial finds a defendant Thus, (and compe- once defendant has and un- to stand trial therefore equivocally rights) tent declared his or to waive and in her intention to constitutional addi- se, appear pro voluntarily, judge tion finds that the must defendant know- conduct a inquiry ingly intelligently right thorough and into the waives his to coun- circumstances sur- se, proceed judge rounding pro inquiry sel and elects must assertion.... ability incorporated still consider defendant's make a should be into the trial record intelligible presentation advising coherent and of his de- ... and should include: the defend- discourage a in a defendant himself “rational and coherent man- attempt insists, If McCracken, how- representing ap- It ner.” 518 P.2d at 91. ever, must be allowed the defendant pears average criminal defendant knowingly if he is represent himself able permitted himself must be re- right waive his to counsel intelligently might gardless of how bad idea that an competence to minimum and has certain him. The trial first should ex- a defense. conduct disadvantages plain to the defendant the self-representation. If the defendant knowingly and a defendant can Whether compe- and is sists on himself right a fundamental intelligently waive do can consider one which tent to right counsel is such as the advisory him. frequently. Judge Gonzalez use of to aid It counsel courts decide knowing- however, not Burks was able to appears, found that that there is some sort right to coun- ly intelligently waive his relatively low minimum standard which Although relatively it is unusual sel. must able defendant meet to be find is not able to know- that a defendant Exactly his own defense. what conduct counsel, right ingly his waive is, however, is this minimum standard not supports Judge Gonzalez’s fully the record which clear. that the standard Burks was unable conclusion. Since high, has to not the defendant meet is counsel, Judge waive fairly must find unusual circum- the court to find that Burks could required deprive in order to the defendant of stances require and to counsel to represent himself In this case represent Burks. appears that substantial evi- there was additional element of

There is an that Burks did not meet this mini- dence competence to conduct a de- defendant’s competence. standard unnec- mum If the worthy fense of comment. which is issue, resolve essary to be- counsel, capable waiving already had found to be been cause necessary to what sort of waiving to counsel. incapable of Faretta, a defense? Under conduct not need to “have the skill defendant does compe- lawyer of a in order experience intelligently self-repre-

tently to choose sentation_” Faretta, U.S. Supreme Alaska S.Ct. must es-

Court states that the defendant can

tablish background, pre- importance educational the defendant’s to counsel and the ant of trials, coünsel; gen- experience having warning vious with criminal the defendant competence.... defendant must self-repre- "dangers disadvantages [T]he eral sentation, possess the mental to understand so that the record will establish self-repre- dangers and ramifications of doing what he is and his choice ‘he knows , eyes open”’; inquiring into sentation. made with

Case Details

Case Name: Burks v. State

Court Name: Court of Appeals of Alaska

Date Published: Jan 22, 1988

Citation: 748 P.2d 1178

Docket Number: A-1216

Court Abbreviation: Alaska Ct. App.