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Thomas v. State

Court of Appeals of Alaska

September 23, 2016

ANDREW VICTOR THOMAS, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal 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.[*]

          OPINION

          MANNHEIMER Judge.

         In 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.

         The 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.

         Based 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.

         From 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 pursued.

         Several 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 on appeal.)

         In late 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 file.

         In 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, [1] 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).

         Perhaps 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 ...


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