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Shorthill v. State

Court of Appeals of Alaska

July 10, 2015

CARRY EUGENE SHORTHILL, Appellant,
v.
STATE OF ALASKA, Appellee

Page 1094

Appeal from the Superior Court, Third Judicial District, Anchorage, Larry D. Card, Philip R. Volland, and Michael L. Wolverton, Judges. Trial Court No. 3AN-05-9029 CR.

Hannah King (opening brief) and Sharon Barr (reply brief), Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

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

Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge.[*]

OPINION

Page 1095

MANNHEIMER, Judge

In September 2005, Carry Eugene Shorthill led the Anchorage police on a strange, low-speed car chase on the Glenn Highway.

Page 1096

Based on this incident, Shorthill was convicted of felony eluding and third-degree assault (for placing one of the pursuing officers in fear of imminent serious physical injury).

In this appeal, Shorthill argues that the superior court committed error by refusing to allow him to represent himself at trial, after Shorthill had represented himself during a year of pre-trial litigation. Shorthill also argues that he was brought to trial outside the time limits of Alaska's speedy trial rule. And he contends that the evidence presented at his trial was legally insufficient to support his convictions.

In addition, Shorthill asserts that the superior court should have granted his motion to dismiss the indictment, and the court committed error during the trial by allowing the State to introduce evidence that Shorthill had a semi-automatic rifle in his vehicle during the pursuit.

For the reasons explained in this opinion, we conclude that the superior court properly found, based on Shorthill's efforts to represent himself during the year of pre-trial litigation, that it would be unjust and fundamentally unfair to allow Shorthill to represent himself at trial.

We also conclude that Shorthill was brought to trial within the time limits of the speedy trial rule, that the evidence at Shorthill's trial was sufficient to support his convictions, that the superior court properly denied Shorthill's motion to dismiss the indictment, and that the court properly admitted the evidence of the semi-automatic rifle in Shorthill's vehicle.

Accordingly, we affirm Shorthill's convictions.

Underlying facts

This case arose from the events that unfolded after Officer James Conley, driving an unmarked police car, observed Shorthill traveling at a speed of 77 miles per hour ( i.e., traveling over the speed limit) on the Glenn Highway near Eklutna. Shorthill was headed south, toward Anchorage.

When Conley activated his police lights and signaled to Shorthill to pull over, Shorthill slowed his vehicle and activated his right-turn signal, as if to pull off the highway at the Eklutna exit. But Shorthill did not pull over. Instead, he continued driving toward Anchorage at slower speeds, sometimes as little as 25 or 30 miles per hour. In the meantime, Shorthill's wife (who was riding in the passenger seat of the truck) activated a video camera and started recording the episode.

While he was driving, Shorthill used a mobile phone to call 911. He told the 911 operator that an unmarked police car was following him, and he directed the 911 operator to tell the officer to " back off" -- that he would pull over as soon as he got to a " public place" .

Officer Conley, for his part, called for backup. Two other officers --Roger Nelson and Richard Dykstra -- responded.

Officer Nelson twice tried to force Shorthill to pull over. At the Mirror Lake exit, Nelson pulled in front of Shorthill and then applied his brakes, trying to force Shorthill to pull over and take the exit, but Shorthill was able to drive around Nelson's car.

Nelson next tried to stop Shorthill by deploying spike strips (tire deflation devices) on the road, but Shorthill was able to drive around these devices without puncturing his tires.

After the police engaged in these unsuccessful attempts to force Shorthill to stop, Shorthill increased his speed to around 50 or 60 miles per hour.

Along this stretch of the Glenn Highway, the road is two lanes in each direction, with a dirt median separating the traffic headed north and south. When Officer Conley started to pull alongside Shorthill in the left lane, Shorthill swerved to the left and began driving down the center of the road, straddling the two lanes and forcing Conley to stay behind him. When Shorthill moved further over to the left, into the left lane, Conley overtook him on the right, so that he could deploy more spike strips. But there was an on-ramp that entered the highway at this location, and Shorthill veered his truck sharply to the right, into the extra lane that

Page 1097

was temporarily created by the empty on-ramp.

At this point, Conley and Shorthill were driving side-by-side. But the extra lane created by the on-ramp soon ran out, and Shorthill guided his car back into the regular right-hand lane of the highway. This forced Conley to steer his vehicle to the left to avoid an impact. For this maneuver, Shorthill was later charged with third-degree assault.

Shorthill eventually exited the Glenn Highway at the South Peters Creek exit. The officers followed Shorthill off the highway. Shorthill ran through two stop signs before he brought his truck to a stop in the parking lot of a gas station. As soon as Shorthill stopped his truck, he and his wife began honking the horn and screaming for help from inside the truck.

In order to get Shorthill out of the truck, the officers were forced to break the truck's windows. In the process of pulling Shorthill from the truck, Officer Dykstra saw an SKS ( i.e., a semi-automatic rifle) lying in the cab of the truck.[1] Dykstra immediately yelled, " Rifle!" In response to this warning, Officer Conley pulled Shorthill's wife from the truck as well, to prevent her from having access to the rifle.

Based on this incident, Shorthill was indicted on one count of third-degree assault and one count of first-degree (felony) eluding. (Shorthill was also charged with two misdemeanors: reckless driving and resisting arrest.)

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

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that defendants in criminal cases have a constitutional right to reject the assistance of counsel and to represent themselves. But more recently, in Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), the Supreme Court concluded that trial courts have the authority to restrict this right of self-representation in certain instances -- situations where defendants " are not competent to conduct trial proceedings by themselves." Id., 554 U.S. at 178, 128 S.Ct. at 2388.

In Shorthill's case, he was initially represented by counsel -- in fact, by a series of attorneys -- during the first year of the proceedings. This changed in November 2006, when Shorthill announced that he no longer wished to be represented by the Public Defender Agency (his then-current attorney), and that he intended to represent himself. At that time, the superior court found that Shorthill was competent to represent himself, so the court released the Public Defender Agency from further service, and Shorthill represented himself for the next year of the proceedings (up to the time scheduled for his trial).

During this year when Shorthill had no attorney, it gradually became clear to the superior court judges handling his case -- primarily, Judges Larry D. Card and Michael L. Wolverton -- that Shorthill faced major difficulties in representing himself.

As we are about to describe in more detail, Shorthill kept trying to relitigate issues that he had already litigated and lost. When he was not doing that, Shorthill focused much of his attention on issues that were either legally insupportable or irrelevant -- issues such as whether the police filled out the correct forms following Shorthill's arrest; or whether the officer who applied for the search warrant in Shorthill's case relied on hearsay from the officers who were personally involved in the pursuit and the traffic stop; or whether Judge Wolverton's oath of office was on file, and whether the judge was bonded.

And when Judge Card held a multi-day evidentiary hearing on Shorthill's pre-trial motion to suppress evidence (based on the

Page 1098

purported illegality of the traffic stop), Shorthill floundered: he was unable to figure out the rules for questioning witnesses, he was unable to focus his questions on the legal issues that were relevant to his theory of suppression, and he was unable to refrain from phrasing his questions in the form of testimony (a practice that drew repeated objections from the prosecutor -- objections that were sustained by the judge).

When Shorthill's case was ultimately called for trial in December 2007, Shorthill informed the court that he had communicated with an Oklahoma lawyer about assisting him at trial in an advisory capacity. But when the superior court telephoned this Oklahoma lawyer, the lawyer stated that he was not licensed in Alaska and could not represent anyone in Alaska -- although he fully agreed that Shorthill needed the assistance of a lawyer.

At this point, the superior court revoked Shorthill's permission to represent himself, and the court appointed a lawyer to represent him. Shorthill now challenges this decision, arguing that the superior court violated his right of self-representation.

To answer Shorthill's claim, we are about to present a lengthy description of the litigation history of Shorthill's case. We have two purposes for presenting such a detailed factual description.

First, of course, we wish to explain why we are upholding the superior court's decision in Shorthill's case.

But second (and just as importantly), we want to make sure that our decision in this case is not interpreted as a license for trial judges to override a defendant's right of self-representation merely because a defendant is unfamiliar with court procedures, or has some difficulty understanding the pertinent rules, or advances unusual legal theories, or because it would generally be more convenient for the court if the defendant had a lawyer.

Here, the record demonstrates that Shorthill had persistent and pervasive difficulties with the judicial process -- difficulties so acute that, in the words of the United States Supreme Court in Indiana v. Edwards, he was " unable to carry out the basic tasks needed to present his own defense without the help of counsel." [2] Shorthill was unable to organize his defense, he was unable to focus on meaningful motions or relevant points of law, and his questioning of witnesses and his arguments to the court were largely ineffectual. For this reason, we conclude that the superior court could properly decide to require Shorthill to have a lawyer.

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

Introductory note : We wish to clarify at the outset that, in the discussion that follows, we are not following the judicial convention of saying " Shorthill argued" or " Shorthill requested" when we really mean that his attorney made the argument or the request. Instead, whenever we refer to Shorthill's having done something, we mean that he personally did it.

Shorthill's initial appearance in court took place on September 27, 2005. Shorthill was verbally combative with the judge, and he gave an account of the incident that differed substantially from the State's view. In particular, Shorthill told the district court judge that he called 911 during the police pursuit " to ask for their assistance to protect me from this maniac that tried to run into my vehicle."

Shorthill also voiced some legal theories that were unconventional: he suggested that it was a violation of the double jeopardy clause for the court to require both monetary bail and a third-party custodian, and he repeatedly challenged the legality of the charging documents in his case because these documents were not sworn to by someone with first-hand knowledge of the incident. Although these theories were unorthodox, Shorthill articulated them in a clear, understandable manner.

Page 1099

Shorthill also told the judge that he would be able to afford his own attorney, and that he did not want a court-appointed attorney.

By early October, Shorthill had retained the services of an attorney. But several weeks later, Judge Michael Wolverton granted this attorney's motion to withdraw. Judge Wolverton then questioned Shorthill regarding his potential desire to represent himself. But Shorthill told the judge that he did not wish to represent himself -- that he was, in fact, unable to represent himself.

Judge Wolverton suggested that Shorthill might wish to apply for court-appointed counsel, but Shorthill told the judge that he would not accept a court-appointed attorney unless the attorney was willing to " sign a contract" with him -- apparently, a special contract that Shorthill had prepared. Judge Wolverton informed Shorthill that a court-appointed attorney would not do that -- to which Shorthill replied, " Okay. Then I don't want one."

One weeklater, on November 23, 2005, Shorthill returned to court to report that he had not been able to find an attorney who was willing to represent him.

Judge Wolverton again offered Shorthill a court-appointed attorney, to which Shorthill replied, " If the court-appointed counsel will sign my contract, I have no problem." The judge again informed Shorthill that a court-appointed attorney would not be required to sign his contract. The judge then offered Shorthill more time to see if he could find a private attorney who was willing to sign his contract. In response, Shorthill posed an unrelated question to the judge: Was he entitled to trial by a jury of his peers? Judge Wolverton said yes. Shorthill then announced that he was not a citizen of the United States, and that he was present before the court " only by force of arms" . The judge told Shorthill that this made no difference: he was still under the jurisdiction of the court.

After this discussion, Shorthill announced that he did not want any more time to try to find a private attorney. Judge Wolverton replied that, if that was the case, he was appointing the Public Defender Agency to represent Shorthill. Shorthill responded, " Only upon signing of the contract, sir." To which the judge replied, " No, that's not going to happen. The Public Defender Agency is appointed."

At the next two hearings in this case, both held in mid-December 2005, Shorthill was represented by an assistant public defender. At the second of these hearings, Shorthill again declared that he was under the superior court's jurisdiction only " under threat of arms" . Judge Wolverton declared that Shorthill was properly under the court's jurisdiction, and that he did not intend to discuss this matter any further.

In mid-January 2006, Judge Wolverton held another hearing in Shorthill's case. At this hearing, Shorthill had a new attorney (still at public expense), and Shorthill had apparently been granted co-counsel status. When the judge called Shorthill's case and directed Shorthill and his attorney to come forward to the counsel table, the following colloquy ensued:

Shorthill : Sir, that man [apparently referring to a police officer in the courtroom] is in uniform.
The Court : I ...
Shorthill : And he's ...
The Court : If you don't come ...
Shorthill : ... it's a show of force, and you're ...
The Court : ... I'm going to have you ...
Shorthill : ... rushing me to judgment.
The Court : I'll have you arrested if you don't come to counsel table. Do you want that?
Shorthill : Under force and threat of arms, sir.
The Court : Yep. You bet it is.
Shorthill : I -- that's right: under threat of arms.
The Court : That's exactly what it is. Have a seat.

The parties then proceeded to discuss Shorthill's request for discovery from a third party: the Municipality of Anchorage. Shorthill had filed a pro se motion seeking the personnel files of the officers involved in

Page 1100

this incident, as well as policy and procedures manuals and police tactical manuals. Attorneys for the Municipality and for the police officers appeared in court to oppose this request. The judge and Shorthill's attorney were discussing whether the Municipal Attorney's Office had standing to oppose Shorthill's request. Then Shorthill went off on a tangent:

The Court : [referring to the discovery request] So I'm not going to decide anything this morning, because I'm going to give [Shorthill and his attorney] a chance to respond [to the Municipality's argument], as [they are] entitled to. But in writing.
Shorthill : Well, could I speak, sir?
The Court : Yeah. Go ahead.
Shorthill : Okay. This officer's presence ... is scaring the hell out of my wife, as she was assaulted sexually by an officer. [Shorthill was perhaps referring to the search of his wife's person for weapons at the scene of the traffic stop.] And he should not be here, sir.
The Court : Okay.
Shorthill : He's using force on us, and that is wrong. ... This is a ... neutral ground, sir.
The Court : And I'm going to state, for the record, that [that] is simply, unequivocally untrue. ... He's not using any force. He has a right to wear his uniform in court. It happens every single day in this courthouse, and it will in this courtroom.
Shorthill : Sir, ...
The Court : And that's all there is to it.
Shorthill : May I speak?
The Court : Briefly.
Shorthill : ... The first level of force is [the] officer's uniform and presence, sir. That's their use-of-force continuum that I've requested [in my discovery request], that they're trying to get out of.
The Court : Right.
Shorthill : And that stands as they are trained to use that, sir.
The Court : I've made my [ruling], and I'm not going to hear about this further. The officers [can] come into this courthouse with their uniforms on. They're entitled to do that, and that's all there is to it. ... There's no use of force in this courtroom. All right.
Shorthill's wife : So you mean ... I have to put up ...
The Court : Ma'am, have a seat and ...
Shorthill's wife : ... with the man ...
The Court : Have a seat.
Shorthill's wife : ... with an officer ...
The Court : Right now.
Shorthill's wife : ... that sexually assaulted me?
The Court : Have a seat. Have a seat. All right.

Later, in April 2006, a different assistant public defender began representing Shorthill. By mid-May, Judge Wolverton had conducted an in camera review of the municipal records and documents that Shorthill was requesting, and the judge issued an order directing the Municipality to produce some (but not all) of these requested materials.

Two months later, at a mid-July hearing, Shorthill complained that Judge Wolverton had not directed the Municipality to release all of the materials he requested. The judge explained to Shorthill that he had gone through all the materials in camera, and that he had made his decision -- a decision that gave Shorthill more than the Municipality and the police wanted, but less than everything Shorthill wanted.

In response to the judge's explanation, Shorthill began to argue that the court had already issued an order the previous December that required complete production of everything Shorthill wanted. The judge replied, " I've given you what I'm going to give you. That's all there is to it."

(As we will explain in a later section of this opinion, Judge Wolverton had in fact issued an order in December 2005 that purported to completely grant Shorthill's discovery request. But then the Municipality and the police officers objected to the breadth of the discovery -- prompting Judge Wolverton to conduct an in camera review of the requested materials and, ultimately, to scale back the scope of the disclosure. In the ensuing months, Shorthill repeatedly argued that

Page 1101

Judge Wolverton's original order continued to govern the discovery question -- and both Judge Wolverton and Judge Card repeatedly informed Shorthill that Judge Wolverton's later decision --the decision he made following his in camera review of the materials -- was the controlling decision.)

Two months later, at a hearing in mid-September 2006, Shorthill objected to any further participation by his assistant public defender. He told the court that he had " fired [his attorney] in open court several times." Shorthill complained that his assistant public defender had " failed to produce any documentation" and had " failed to communicate with me", and had " filed some silly documents without any authority to do so -- like practicing medicine without a license."

Two weeks later, in early October, the Public Defender Agency asked the superior court to hold an in camera representation hearing.

Ultimately, on November 13, 2006, Judge Larry Card allowed the Public Defender Agency to withdraw and allowed Shorthill to begin representing himself -- after the judge found that Shorthill was competent to do so, and that he had knowingly waived his right to counsel.

The next court proceedings of note in Shorthill's case occurred in August 2007, when Judge Card began a multi-day evidentiary hearing on Shorthill's motion to suppress all of the evidence stemming from the traffic stop (on the ground that the stop was allegedly illegal), and to suppress the evidence obtained under an ensuing search warrant (the video recording that Shorthill's wife made, using her camcorder, of the police pursuit).

When it was Shorthill's turn to cross-examine the police officer who testified at this hearing, he kept inserting factual assertions and comments into his questions, despite repeated warnings from the judge that this was improper. In addition, Judge Card had to inform Shorthill that his arguments on his motion could not be made while he was questioning the witness, but had to be made afterwards.

Shorthill spent a significant portion of the hearing asking questions based on the theory that it was unlawful for the police to seize the rifle from his car at the time of the traffic stop because (1) the rifle was not evidence of the traffic offense which triggered the police pursuit ( i.e., speeding), and because (2) Shorthill was never charged with a weapons offense. He also asked several questions based on the mistaken theory that an application for a search warrant must be based entirely on affidavits submitted by people who have personal knowledge of the facts -- and that, therefore, the search warrant in his case was unlawful, since the search warrant application contained hearsay assertions made by the other officers who participated in the pursuit and traffic stop.

In addition, Shorthill again asserted that he had not received all the discovery he was entitled to. He argued that Judge Wolverton had issued a court order in December 2005 that entitled him to everything he asked for, and not just the materials that the judge had released following his in camera review. Judge Card told Shorthill that the discovery ruling had been made, and that Shorthill was not entitled to any additional materials.

Toward the end of this hearing, the prosecutor urged Judge Card to reconsider his ruling that Shorthill was competent to represent himself. The judge conceded that Shorthill was having trouble following the rules of procedure, but the judge concluded that things had not reached the point where it was necessary to revoke Shorthill's permission to represent himself.

Following this discussion, Shorthill again asserted that he had not received all the discovery he was entitled to, and Judge Card again declared that the issue of discovery was concluded.

The suppression hearing was then continued until September 2007.

At the resumption of the suppression hearing on September 4th, an attorney for the Municipality of Anchorage appeared and objected that Shorthill had served a subpoena duces tecum on a police officer -- Sgt. Pablo Paiz -- for the apparent purpose of circumventing Judge Wolverton's discovery ruling.

Page 1102

This subpoena purported to require the officer to produce some of the materials that Judge Wolverton had declined to disclose to ...


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