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Crawford v. State

Court of Appeals of Alaska

October 31, 2014

KEANE-ALEXANDER CRAWFORD, Appellant,
v.
STATE OF ALASKA, Appellee.

Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-08-13715 CR. Eric A. Aarseth, Patrick McKay, Jack W. Smith, and Michael Spaan, Judges.

Keane-A lexander Crawford, in propria persona, Seward, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.

Before: Mannheimer, Chief Judge, Allard, Judge, and E. Smith, Superior Court Judge. [*]

OPINION

Mannheimer Judge.

Keane-Alexander Crawford was convicted of second-degree murder for shooting and killing his sister's fiancé, following a physical altercation between the two men. Crawford represented himself at trial, and he continues to represent himself in this appeal.

On appeal, Crawford contends that he was brought to trial outside the time limits of Alaska Criminal Rule 45 (Alaska's speedy trial rule), and in violation of the Sixth Amendment right to speedy trial, and that his conviction should therefore be reversed with prejudice. In the alternative, Crawford argues that he is entitled to a new trial on several bases.

Crawford contends that he is entitled to a new trial because his trial judge should have recused himself.

In addition, Crawford asserts that his trial was flawed because the trial judge improperly restricted his voir dire examination of prospective jurors, refused to enforce Crawford's subpoena for a prospective defense witness, made several erroneous evidentiary rulings, misinstructed the jurors on self-defense, and refused Crawford's request to instruct the jury on "defense of others". Crawford also argues that the trial judge improperly denied his post-verdict motion for a new trial.

Finally, Crawford claims that he was unlawfully denied a fair opportunity to defend himself because he was indigent and the trial judge declined to provide Crawford with funds to hire an expert witness.

With respect to all but one of Crawford's claims of error, we conclude either that there was no error, or that the error Crawford has identified was harmless.

But with respect to Crawford's claim that he was entitled to public funds to hire an expert witness, even after he declined to be represented by a court-appointed attorney, we conclude that we should seek supplemental briefing on this claim. This question is one of first impression in this state, it turns on issues of statutory construction and constitutional law, and Crawford is representing himself in this appeal. Even though Crawford has written a detailed and articulate brief, he is not trained in the law, and this Court believes that it would be fairer to Crawford — and to the future pro se litigants affected by our decision — to have attorneys brief both sides of this controversy. We therefore will solicit supplemental briefs from the parties and from the state's two criminal defense agencies, the Public Defender Agency and the Office of Public Advocacy.

The procedural facts relating to Crawford's speedy trial claim, and an overview of our analysis of this claim

Criminal Rule 45(c)(1) provides that a criminal defendant must be brought to trial within 120 days from the date they were served with the charging document, but Criminal Rule 45(d) exempts various types of delay from this 120-day calculation.

Crawford was arraigned and served with the charging documents on December 7, 2008, so the following day (December 8) was Day 1 of his Rule 45 calculation.

The Rule 45 clock ran for 30 days, until January 6, 2009, when Crawford filed motions for a change of venue and for special consideration due to his indigency and pro se status. The filing of those motions tolled the running of the speedy trial clock. See Criminal Rule 45(d)(1).

Crawford withdrew his motions on January 13th, but by that time there was an independent reason to toll the running of the speedy trial clock under Rule 45(d)(1): on January 8th, the superior court ordered Crawford to undergo a psychiatric examination to determine whether he was competent to represent himself.

The report from that psychiatric examination was filed with the trial court on January 29th, but the report was inconclusive because Crawford had refused to participate in the examination. The court therefore ordered a second psychiatric examination, and this issue remained undecided.

Moreover, Crawford filed several other motions on January 28th: motions for depositions of witnesses, to compel pre-trial discovery, to dismiss the indictment, and to sever the trials of the various charges against him — as well as renewed motions for a change of venue and for special consideration due to his indigency and pro se status.

While these motions were pending, Crawford filed a motion asking the trial court to order the Office of Public Advocacy to provide him with investigative assistance and with funds for expert witnesses. Crawford also asked the court to appoint private counsel for him. These motions became ripe for decision on February 25, 2009 (the day that Crawford filed his reply to the State's oppositions). This meant that the speedy trial clock would begin to run again 30 days later — on March 27th — unless the trial court ruled on the motions sooner. See Criminal Rule 45(d)(1).

The trial court ruled on the last of Crawford's motions on March 24th. However, the speedy trial clock remained tolled because the court had not yet ruled on the issue of whether Crawford was competent to represent himself. The court had received the report from the second psychiatric examination on March 11th — but, again, Crawford had declined to participate. So on March 25th, the court ordered a third psychiatric examination, and the speedy trial clock remained tolled.

The court received the report from the third psychiatric examination on April 16th. Based on that report, the court granted Crawford's request to represent himself on April 22nd.

With all pending motions resolved, the speedy trial clock began running the following day: April 23rd. This was Day 31 of the calculation.

Various pre-trial conferences and proceedings took place during the next several weeks, with the speedy trial clock running. The court set a final pre-trial conference for June 10th, and the court scheduled Crawford's trial for Monday, June 22, 2009.

June 22nd was 60 days after April 23rd (and April 23rd was Day 31). Thus, if Crawford's trial had begun on June 22nd, that would have been Day 91 for speedy trial purposes.

But on June 16, 2009, Crawford requested a five-day continuance of his trial. (Actually, Crawford's request amounted to a request for a seven-day continuance, because the scheduled trial date — June 22nd — was a Monday; the five days that Crawford was asking for would have ended on a Saturday.)

The court granted Crawford's request and rescheduled the trial for Monday, June 29th. This continuance stopped the running of the speedy trial clock at Day 85.

Then, on June 29th, Crawford asked the court for another continuance — or, in the alternative, dismissal of the charges against him — because he had not received all the pre-trial discovery he was entitled to. Thus, the speedy trial clock remained tolled at Day 85.

Three days later, on July 2nd, the trial court issued its ruling on the discovery question. The court found that the State had violated various pre-trial discovery orders, but the court found that the State's violations had not been willful. The court therefore denied Crawford's request to dismiss the charges, but the court granted Crawford's alternative request for a continuance of the trial. Specifically, the court ordered a month's continuance of the trial — until August 3, 2009.

On August 3rd (i.e., the scheduled trial date), Crawford asked the court to grant him another continuance to prepare and file motions and to obtain expert witnesses. Crawford agreed to delay his trial for three months — until November 2nd — for these purposes. The court granted Crawford's request.

However, on September 18th, Crawford informed the court that he was withdrawing his request for the remainder of this three-month continuance, and that he wished to go to trial as soon as possible. The court nevertheless maintained the November 2nd trial date.

On November 2nd, Crawford asked the court for public funds to transport various defense witnesses, including three young children. Crawford's motion led to hearings on the competency of the child witnesses. Crawford also filed a motion asking the court to issue compulsory process so that Crawford could have access to a child witness, T.B., the homicide victim's son.

Because of Crawford's motions, and the resulting proceedings on those motions, the speedy trial clock remained tolled at Day 85.

On November 9th, the trial court concluded that Crawford was not competent to represent himself, and the court appointed the Public Defender Agency to represent him.

Because the court had not yet ruled on one aspect of Crawford's November 2nd motions (specifically, the competency of the child witnesses), the speedy trial clock was still tolled. But, in addition, the court expressly tolled the speedy trial clock for another 30 days — over Crawford's objection — to allow the Public Defender Agency to determine if there was a conflict that would prevent the Agency from representing Crawford, and (if not) to allow time for an assistant public defender to prepare for Crawford's trial.

That same day (November 9th), Crawford petitioned this Court to review the trial court's ruling regarding Crawford's competency to represent himself. This petition for review independently tolled the running of the speedy trial clock — because, until the issue of Crawford's competence to represent himself was resolved, the trial could not go forward.

On December 15, 2009, this Court granted Crawford's petition for review and overruled the trial court on the issue of Crawford's competence to represent himself. Crawford's case was returned to the superior court for trial, with the speedy trial clock still standing at Day 85.

Under Sundberg v. State, 667 P.2d 1268, 1270-71 (Alaska App. 1983), when a case is returned to the trial court following this Court's resolution of a petition for review, the trial court has a 30-day grace period to work the case back into its trial schedule. Crawford's case returned to the superior court on December 16, 2009 (the day after we issued our ruling on Crawford's petition for review), and Crawford's trial began 22 days later — on January 6, 2010.

In sum: On the day that Crawford's trial began, the speedy trial clock stood at Day 85. Crawford was therefore brought to trial within the time limits of Criminal Rule 45.

Crawford's objections to the foregoing speedy trial analysis

(a) The time attributable to Crawford's request for a five-day continuance of trial on June 16, 2009

Crawford's first objection to the foregoing analysis involves our conclusion that Crawford effectively waived seven days of time when, on June 16, 2009, he asked the trial court for a five-day continuance of his trial. Crawford argues that because he only asked for a five-day delay, it was improper to toll the running of Rule 45 for any greater length of time.

But as we explained earlier, Crawford's request for a five-day delay effectively amounted to a request for a seven-day delay. His trial was scheduled for Monday, June 22nd. The five days he asked for would have ended on Saturday the 27th, so the trial could not have started until Monday the 29th.

We further note that when Crawford requested the five-day continuance at the June 16th pre-trial conference, the trial court expressly told him that Rule 45 would be tolled for "one week". Crawford did not object to the trial court's characterization of the situation.

It is true that Crawford returned to court the next day and announced (1) that he was withdrawing his request for the five-day continuance, and (2) that he now wanted to go to trial as previously scheduled, on June 22nd. But the trial court explained that, because of Crawford's earlier request, the trial of another case had already been set for June 22nd, and Crawford's own trial had been rescheduled for June 29th. Thus, the court told Crawford, he had effectively "waived a week" of time under Rule 45.

We agree that, under these facts, the trial court was justified in holding Crawford to the rescheduled trial date. This conclusion rests on two principles.

The first principle — illustrated by our supreme court's decision in Coffey v. State, 585 P.2d 514 (Alaska 1978), and by our own decision in State v. Jeske, 823 P.2d 6 (Alaska App. 1991) — is that when a defendant rescinds a previous waiver of time under Rule 45 or a previous agreement to a continuance, the rescission does not take effect ab initio. Rather, the Rule 45 clock remains tolled until the defendant's change of mind is affirmatively communicated to the trial court. [1]

The second principle is that the speedy trial clock does not necessarily begin running again immediately upon a defendant's announcement that they wish to withdraw their earlier waiver or consent to a continuance. Rather, as we suggested in Wardlow v. State, 2 P.3d 1238 (Alaska App. 2000), if the trial court's schedule has been altered in reliance on the defendant's earlier waiver of time, the trial court would be "justified in adding several days to the Rule 45 calculation in order to work [the defendant's] case back into the trial calendar — or in telling [the defendant] that he would have to wait until the scheduled trial date". Id. at 1244.

We note that Criminal Rule 45(d)(2) speaks of the "period of delay resulting from ... [a] continuance granted at the timely request or with the consent of the defendant." When a defendant requests a continuance, and then later rescinds that request, the court may not be able to put the defendant's case back into the trial calendar in its original spot, and thus the defendant's request may result in a greater period of delay.

Compare our holdings in Sundberg v. State, 657 P.2d 843 (Alaska App. 1982), as m odified on rehearing, 667 P.2d 1268, 1270 (A laska A pp. 1983), and Petersen v. State, 838 P.2d 812, 815 (Alaska App. 1992).

In Crawford's case, when Crawford announced that he wished to rescind his earlier request for a continuance of his trial, the court explained that Crawford's June 22nd trial date had already been given to another case, and that Crawford would have to wait until the Monday after that — June 29th. Given the record here, the trial court's action was permissible under Criminal Rule 45(d)(2).

(b) The time attributable to Crawford's request for a continuance of trial on June 29, 2009

Crawford's next objection to our speedy trial analysis involves the trial court's response when, on June 29th, Crawford asked for a continuance of his trial — or, in the alternative, dismissal of the charges — because the State had failed to provide all of the required pre-trial discovery.

When Crawford asked for this continuance, he also asked the court to sanction the State for its discovery violations by charging the additional time against the State for purposes of Rule 45. Crawford argued that it was unfair to make him choose between his right to pre-trial discovery and his right to a speedy trial.

Following a series of hearings, the trial court ultimately agreed with Crawford that the State had violated its discovery obligations; but the court found that the State's violations had not been willful. The court concluded that the proper remedy for the discovery violations was a continuance of the trial until August 3, 2009 — but the continuance would be charged against Crawford, not the State. (The court recognized that if the delay was charged to the State, this would bring Crawford's case to the brink of dismissal under Rule 45(g).)

On appeal, Crawford claims that the trial court's action violated Criminal Rule 45(d)(2). Rule 45(d)(2) is the provision of the speedy trial rule that exempts periods of delay resulting from "continuance[s] granted at the timely request [of, ] or with the consent of[, ] the defendant".

The final sentence of this rule declares: "A defendant without counsel shall not be deemed to have consented to a continuance [for purposes of this rule] unless the defendant has been advised by the court of the right to a speedy trial under this rule[, ] and of the effect of [the defendant's] consent [to the continuance]."

Crawford argues that, because he was representing himself, and because the trial court neglected to expressly inform him that his requested continuance (if granted) would toll the running of the speedy trial clock, any delay attributable to the requested continuance had to run against the State.

We reject Crawford's argument for two reasons.

First, the wording of Criminal Rule 45(d)(2), taken as a whole, actually suggests that the trial court was not required to affirmatively warn Crawford about the Rule 45 consequences of the continuance. The final sentence of Rule 45(d)(2) declares that an unrepresented defendant "shall not be deemed to have consented to a continuance" unless the court informs the defendant of the speedy trial consequences of their consent. But the initial sentence of Rule 45(d)(2) speaks of two different situations: situations where a continuance is granted "at the ... request" of the defendant, and situations where a continuance is granted "with the consent" of the defendant.

Comparing the wording of these two sentences, it appears that the drafters of Rule 45(d)(2) may have intended to draw a distinction between (1) situations where a defendant actively seeks a continuance, versus (2) situations where a defendant acquiesces in a continuance proposed by the government or by the court — and that the drafters intended the final sentence of the rule (the proviso that requires the court to specially advise unrepresented defendants) to apply only to the second type of situation.

In the present case, Crawford did not merely "consent" to the continuance. Instead, he affirmatively requested the continuance. Thus, the final sentence of Rule 45(d)(2) would not apply.

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

When Crawford made his motion to continue the trial on June 29, 2009, the trial court had already advised him several times of his right to a speedy trial under Rule 45. In particular, just a few days earlier, the court had advised Crawford that "the filing of a motion automatically tolls speedy trial time, regardless of its nature, " and that Rule 45 might conceivably be tolled "for as much as 30 days after the [motion] becomes ripe [for decision]." At that time, Crawford assured the trial court that he was familiar with Criminal Rule 45. Even though the trial court may not have repeated this warning when Crawford moved for a continuance of the trial on June 29th, Crawford had been warned that any motion he filed would stop the Rule 45 clock.

Crawford also argues that his request for a continuance of the trial was conditioned on the court's agreeing to charge the delay against the State. But when the trial court ruled on Crawford's motion, and continued the trial until August 3rd, the court expressly told Crawford that this continuance would be charged against him — because the State's discovery violations were not willful, and because charging the time against the State would risk dismissal of the charges under Rule 45(g).

It is true that, in response to the trial court's ruling, Crawford filed a notice on July 9, 2009, stating that he did not consent to the tolling of Rule 45. But even though Crawford expressed his dissatisfaction with this portion of the trial court's ruling, Crawford did not actually rescind his request for a continuance of the trial, nor did he otherwise assert that he wanted to go to trial immediately, even though he was presumably unprepared because of the State's discovery violations. Thus, the trial court had no occasion to alter the newly scheduled trial date of August 3, 2009.

(c) The trial court's decision to characterize Crawford's August 3rd pleading as a motion for reconsideration rather than a motion to dismiss on Rule 45 grounds

On August 3, 2009 (the day set for trial), Crawford filed a motion to dismiss the charges against him. Crawford contended that the time for bringing him to trial under Criminal Rule 45 had expired three and a half weeks earlier — because (according to Crawford), when the court granted Crawford's request for a continuance of trial on July 2nd, that continuance should have been charged against the State, not against Crawford.

The trial court treated Crawford's motion as a motion for reconsideration of the court's earlier decision to charge the continuance against Crawford. In this appeal, Crawford argues his motion was, indeed, a motion to dismiss, and thus the trial court committed error when it recharacterized his motion.

This is a distinction without a true difference. No matter what Crawford's pleading was called, his underlying claim for relief was the same: the assertion that the 35-day delay of his trial from June 29th to August 3rd should have been charged to the State — either because it was the State's fault that the pre-trial discovery was incomplete, or because the trial court failed to expressly advise Crawford of the provisions of Rule 45(d)(2).

As the Missouri Court of Appeals observed in State v. Moad, 294 S.W.3d 83, 86 (Mo. App. 2009), "the character of a pleading is determined by its subject matter and not its designation." Here, the substance of Crawford's request for relief was his assertion that the trial court committed error when, earlier, the court ruled that the running of the speedy trial clock should be tolled from June 29th to August 3rd. No matter what label we affix to Crawford's pleading, this was the issue before the court.

Crawford fails to explain why the name attached to his request has any significance. And we have already explained why the trial court's ruling was proper.

In his motion of August 3rd, Crawford argued for the first time that he had a right to go to trial unprepared (because of the State's discovery violations), and thus it was improper for the court to delay Crawford's trial so that the State could cure those discovery violations, and so that Crawford would have time to analyze the newly disclosed information.

But as we explained earlier, Crawford did not make this argument when the trial court was first considering this matter, nor did Crawford make this argument even after the trial court announced its ruling in early July (i.e., announced that Crawford's trial would be continued until August 3rd, but that Rule 45 would be tolled during this time). Nor did Crawford apprise the trial court that he did, indeed, wish to go to trial even though he knew that the State had not disclosed all of the information required by the discovery rules.

Instead, Crawford waited until the arrival of the new trial date (August 3rd), and then he filed a motion to dismiss in which he asserted that he would have preferred to go to trial in early July, even though the State had not completed its pre-trial discovery. This type of procedural maneuvering — accepting the benefit of a continuance granted at one's own request, and later arguing that the continuance was unnecessary or improper — is not allowed. Compare Drake v. State, 899 P.2d 1385, 1388-89 (Alaska App. 1995); State v. Jeske, 823 P.2d 6, 10 (Alaska App. 1991).

(d) Whether the trial court should have allowed Crawford to withdraw his earlier consent to a delay of his trial from August 3rd to November 2nd

On August 3rd (i.e., the scheduled trial date), Crawford asked the court to grant him another continuance to prepare and file more motions, and to obtain expert witnesses. Crawford initially requested a continuance of 45 days, but the trial court told Crawford that a continuance of that length would create scheduling issues — and that if Crawford wanted the continuance, he would have to agree to a trial in early November. In response, Crawford told the court, "If ... the only kind of continuance I can get is three months, then that's what I'll take."

Ultimately, Crawford agreed to delay his trial until November 2nd, and the court granted the requested continuance.

But on September 18th, after the court denied Craw ford's request for public funding to hire expert witnesses, Crawford informed the court that he now wanted to withdraw his consent to the remainder of the three-month continuance. Instead, Crawford asked the court for an immediate trial. The court declined to alter the November 2nd trial date.

On appeal, Crawford contends that the speedy trial clock should have started running again as soon as he notified the court that he wished to withdraw his consent to the remaining portion of the continuance. But Crawford had agreed to a November 2nd trial date, and the court had already scheduled his trial for that date.

The trial court informed Crawford at the outset that Crawford's request for a continuance created scheduling problems — and that if Crawford wanted a continuance of several weeks, the court would have to delay the trial for three months. Crawford initially told the court that he was fine with this; then, about seven weeks later, he changed his mind. But even though Crawford may have changed his mind about delaying his trial until early November, there is nothing in the record to indicate that the court's scheduling problems had changed — nothing to indicate that Crawford's case could reasonably be inserted into the court's trial calendar before the scheduled date of November 2nd.

As we have already explained, when a defendant consents to a delay of trial, and then later withdraws their consent to the remainder of the delay, the court is not required to push all other cases off the trial calendar to accommodate the defendant's change of mind. Rather, the court is entitled to a reasonable amount of time to work the defendant's case back into its trial schedule — and, in practice, this may mean that the defendant must wait until the scheduled trial date.

On this record, Crawford has failed to show that the trial court abused its discretion in requiring Crawford to abide by the already scheduled trial date of November 2nd.

We also note that, even if the trial court abused its discretion when, on September 18th, the court rejected Crawford's request for an immediate trial, Crawford filed a motion 11 days later — on September 29th — that would have tolled the running of Rule 45 in any event. That motion was a request for public funds to cover the transportation and lodging of his defense witnesses, which included his three young children.

The court concluded that it could not resolve Crawford's motion without making a preliminary determination as to whether the three young children were competent to testify. Hearings on the children's competency took place between November 2nd and November 9th. Thus, Crawford's motion for public funding of his witness expenses did not become ripe for decision until November 9th — one week after the previously scheduled trial date of November 2nd.

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

On November 9, 2009, the trial court concluded that Crawford was not competent to represent himself, so the court delayed the proceedings for 30 days to allow time for the Public Defender Agency (or the Office of Public Advocacy, if the Public Defender had a conflict) to select an attorney to represent Crawford, and to give this attorney time to prepare for trial. The trial court ruled that the speedy trial clock would be tolled during this time.

On appeal, Crawford argues that the trial court should not have tolled the running of Rule 45 during this 30-day period. But when a court concludes that a pro se defendant is incompetent to represent themself, and that an attorney must be appointed, we believe that a reasonable period of delay would be tolled under Rule 45 even if the defendant objects.

But in Crawford's case, this issue is moot — because, ten days after the trial court ruled that Crawford was not competent to represent himself, Crawford petitioned this Court to review the trial court's ruling. See Crawford v. State, Court of Appeals File No. A-10610. We granted Crawford's petition and, in an order issued on December 15, 2009, we reversed the trial court's ruling.

Under Criminal Rule 45(d)(1), the speedy trial clock is tolled for "period[s] of delay resulting from ... interlocutory appeals". Here, Crawford sought interlocutory review of the trial court's ruling that he was incompetent to proceed pro se, so the time that this Court took to consider and resolve Crawford's petition for review is attributable to the litigation of the competency issue in the trial court. We conclude that the speedy trial clock was tolled, not from the date that Crawford filed his petition (November 19, 2009), but rather from the date of the trial court's underlying ruling: November 9, 2009.

We previously addressed this same issue in an unpublished opinion: G reen v. State, 1993 WL 13157158 (Alaska App. 1993). In Green, we ruled that when a defendant petitions us to review a trial court's decision, Rule 45 is tolled from the date of the challenged trial court decision (and not the later date when the defendant filed the petition for review). Id. at *4. We explained that, if we construed Rule 45 the other way (so that the speedy trial clock continued to run until the petition was filed), this would "artificially truncate[] the time available to seek appellate review" and would encourage "the hasty filing of ill-considered and ill-advised interlocutory appeals." Id. at *4 n. 3.

We continue to find the reasoning of Green convincing. We therefore conclude that, in Crawford's case, the speedy trial clock was tolled from November 9, 2009 (when the trial court found that Crawford was incompetent to represent himself) to December 15, 2009 (when this Court granted Crawford's petition for review and summarily reversed the trial court).

(Compare Vail v. State, 599 P.2d 1371, 1379-1380 (Alaska 1979), where the supreme court held that Rule 45 was tolled from the initial filing of the petition for review until the date the petition was decided. From the wording of the supreme court's decision, it appears that the court was not asked to decide the question of whether Rule 45 should also be tolled from the date of the disputed trial court decision. Rather, the issue litigated in Vail was whether petitions for review should be treated like trial court motions under Rule 45(d)(1), so that the speedy trial clock would automatically start running again after the supreme court had the petition under advisement for 30 days.)

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

As explained in the preceding section, this Court decided Crawford's petition for review (and reversed the trial court's ruling on Crawford's competency to represent himself) on Tuesday, December 15, 2009. Crawford's case returned to the trial court on the following day, December 16th.

Five days later, on Monday, December 21st, the trial court held its first hearing in Crawford's case following this Court's decision that Crawford should be allowed to represent himself.

At that December 21st hearing, the trial court discharged the attorney who had been appointed to represent Crawford (based on the trial court's earlier finding of incompetency), and then the court discussed when Crawford's trial should begin.

Crawford initially told the court that he wanted the court to hold one more pre-trial hearing, to make sure that all of his witnesses were properly subpoenaed in advance of the new trial date that the court would set, and to give Crawford a chance to secure standby counsel to help him at the trial. The trial court suggested that this pre-trial conference could be held on Monday, January 4th, and then Crawford's trial could begin the next day, January 5th.

Crawford did not immediately object to this schedule, but he told the court that he wanted the time to run against the State. A few minutes later, though, Crawford told the court that he demanded an immediate trial — a trial that would start "today" or "tomorrow", even if this meant not getting his witnesses prepared, and going to trial without standby counsel.

In response, the trial court informed Crawford that, given "the current availability of judges", the earliest that Crawford's trial could start would be the week of January 4th. The court then reiterated its intention to hold a final pre-trial conference on Monday the 4th, and to begin jury selection on Tuesday, January 5th.

In Sundberg v. State, 667 P.2d 1268, 1270 (Alaska App. 1983), this Court held that when a criminal case returns to the trial court following interlocutory review, Rule 45 will be tolled for a reasonable amount of time to allow the court and the parties to work the case back into the court's trial calendar. We also stated that an extra 30 days would presumptively be reasonable. Ibid.; see also Keller v. State, 84 P.3d 1010, 1013 (Alaska App. 2004).

In Crawford's case, the trial court acknowledged the rule in Sundberg, but the court declared that it did not wish to delay Crawford's trial by 30 days. Instead, the court scheduled Crawford's trial for two weeks in the future.

All of this was taking place during the winter holiday season, and the court explicitly stated that its decision to set Crawford's trial for the week of January 4th was based on judge availability. This was a valid consideration under Sundberg, and we therefore conclude that the period of time between December 16, 2009 and January 5, 2010 is excluded from the Rule 45 calculation.

Crawford's trial did not begin on January 5th, but rather on January 6th. The extra day was due to the fact that, at the January 4th pre-trial conference, Crawford made an oral motion for the trial judge to recuse himself. The judge denied this motion but, under the provisions of AS 22.20.020(c), the judge's decision had to be reviewed by another judge before the proceedings could go forward. This review delayed Crawford's trial by one day.

Because this delay was attributable to Crawford's motion for recusal, this extra day is likewise excluded from the Rule 45 calculation.

(g) Conclusion regarding Rule 45

For the reasons explained here, we conclude that only 85 days elapsed under Criminal Rule 45 between the time that Crawford was served with the charging documents (December 7, 2008) and the beginning of his trial (January 6, 2010). Thus, Crawford was brought to trial within the time limits of Rule 45.

Crawford's speedy trial claim under the Sixth Amendment

In addition to his Rule 45 speedy trial claim, Crawford also argues that his right to a speedy trial under the Sixth Amendment was violated.

As this Court acknowledged in Alvarez v. Ketchikan Gateway Borough, 91 P.3d 289, 294 (Alaska App. 2004), there may be rare instances where, even though a defendant is brought to trial within the time limits of Rule 45, the delay in holding the defendant's trial still may have prejudiced the defendant to such an extent that the defendant's Sixth Amendment right to a speedy trial is violated. [2]

In Alvarez, we pointed out that the Alaska Supreme Court has held that an unexplained trial delay of 14 months or more is presumptively prejudicial, [3] while a delay of eight months or less is presumed to be non-prejudicial. [4] But in applying these rules, a court must exclude any periods of delay caused by the defendant. [5]

Approximately 13 months elapsed between Craw ford's arraignment in early December 2008 and the beginning of his trial in early January 2010. However, more than half of this delay was attributable to Crawford's various pre-trial motions and his petition for review. When the delays attributable to Crawford are subtracted from the total, only about six months of delay can be attributed to the State.

As we noted earlier, a delay of eight months or less is presumptively non-prejudicial. Thus, to prevail on his Sixth Amendment claim, Crawford must show that he was actually prejudiced by the six-month delay.

Crawford asserts that he suffered three kinds of prejudice. First, he argues that the delay kept him incarcerated, and away from his family, for 13 months. But we rejected this type of argument in Alvarez. The defendant in Alvarez argued that her pending case had caused her stress and had disrupted her life. [6] This Court held that, even if this claim was true, it did not entitle Alvarez to relief under the Sixth Amendment, in the absence of any showing that it prejudiced her defense. [7] Like the defendant in Alvarez, Crawford makes no showing as to how his separation from his family actually prejudiced his defense.

Crawford next argues that, during the delay, he was incarcerated and had no access to investigative or expert services. But though Crawford's incarceration may have hindered his access to ...


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