from the Superior Court No. 3PA-10-2049 CR, Third Judicial
District, Palmer, Eric Smith, Judge.
Elizabeth D. Friedman, Assistant Public Advocate, Appeals and
Statewide Defense Section, and Richard Allen, Public
Advocate, Anchorage, for the Appellant.
Elizabeth T. Burke, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Craig W. Richards, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge.[*]
early August 2010, Andrew Victor Thomas was released from
prison where he had been serving a sentence for assaulting
his long-time girlfriend, Susanna Braden. On August 4th,
Thomas came to the cabin where Braden was staying and
demanded that she leave with him. When Braden refused, Thomas
stabbed her repeatedly, and then he bludgeoned her several
times in the head with a sledge hammer.
stabbing portion of this assault was witnessed by another
person who was present in the cabin, and this person summoned
help. But by the time the state troopers arrived, Braden was
dead. After the troopers took Thomas into custody, he
repeatedly confessed to killing Braden.
on this episode, Thomas was charged with murder in the first
and second degrees. Because Thomas was indigent, the Office
of Public Advocacy was appointed to represent him.
the beginning, Thomas had a contentious relationship with his
court-appointed attorney. Thomas disagreed with his attorney
about how the case should be investigated, what the trial
strategy should be, and what pre-trial motions should be
times, Thomas asked to be allowed to represent himself. Each
time, the superior court concluded that Thomas was not
competent to do so. (Thomas does not challenge these rulings
2010, Thomas asked the superior court to grant him co-counsel
status so that he could file various pre-trial motions that
his attorney had refused to file. Even though Thomas's
attorney opposed his request, the superior court granted
Thomas's motion. The court believed - mistakenly - that
Thomas had a right to participate as co-counsel if he and his
attorney had unresolvable disagreements about what motions to
fact, the law is the opposite. Although a trial judge is
required to give "due consideration" to a
defendant's request for co-counsel status,  a defendant who
is represented by an attorney has no right to participate as
co-counsel. Christian v. State, 276 P.3d 479, 484
(Alaska App. 2012); Ortberg v. State, 751 P.2d 1368,
1375 (Alaska App. 1988). As we explained in Ortberg,
751 P.2d at 1375:
Although the right to counsel and the right to
self-representation are constitutionally protected, the right
to participate as co-counsel or [to] have hybrid
representation is not. The trial court has broad discretion
to deny hybrid representation or co-counsel status.
Annas [v. State], 726 P.2d [552, ] 557
[(Alaska App. 1986)]; Cano v. Anchorage, 627 P.2d
660, 664 (Alaska App. 1981).
more importantly, this Court stated in Ortberg that
"co-counsel [status] or hybrid representation should
only be allowed if [defense] counsel and the defendant can
work together ...