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Crawford v. State

Court of Appeals of Alaska

September 8, 2017


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

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

          Andrew Steiner, Attorney at Law, Bend, Oregon, appearing at the Court's request to argue the Appellant's position. Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.

          Douglas O. Moody, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, appearing for amicus curiae Alaska Public Defender Agency, aligned with the Appellee.

          Chad Holt, Deputy Public Advocate, Anchorage (the brief), Margaret McWilliams, Assistant Public Advocate, Juneau (oral argument), and Richard Allen, Public Advocate, Anchorage, appearing for amicus curiae Office of Public Advocacy, aligned with the Appellee.

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


          MANNHEIMER, Judge

         If a person is charged with a crime by the State of Alaska, and if that person is unable to afford a private defense attorney, that person is entitled to the services of a defense attorney at public expense under the auspices of either the Public Defender Agency or the Office of Public Advocacy. [1]

         The pertinent statute, AS 18.85.100(a), actually declares that indigent criminal defendants are entitled to two types of services at public expense: (1) "to be represented ... by an attorney to the same extent as a person retaining an attorney is entitled", and (2) "to be provided with the necessary services and facilities of this representation, including investigation and other preparation."

         Thus, when a criminal defendant receives the services of a court-appointed attorney through either the Public Defender Agency or the Office of Public Advocacy, the defendant is entitled to have the agency provide the necessary incidents of that legal representation - for example, to pay for any necessary clerical support, investigative services, and expert evaluations and testimony.

         The defendant in this case, Keane-Alexander Crawford, was charged with murder for shooting and killing his sister's fiancé, Anthony Brown, following a physical altercation between the two men. Crawford qualified for representation at public expense, but he waived his right to counsel and chose to represent himself. (There were various times during the trial court proceedings when Crawford received court-appointed "standby counsel" to assist him, but Crawford remained in control of the litigation of his case.)

         At various times during the pre-trial proceedings in this case, Crawford asked the superior court to supply him with public funds to hire a number of expert witnesses. In one instance (a request to hire a DNA testing laboratory), Crawford identified the type of expert evidence that he wished to introduce, and he explained why he believed that this evidence would be important to his defense. After hearing Crawford's explanation, the superior court ruled that reasonable attorneys would not spend money for the DNA testing that Crawford proposed, so the superior court denied Crawford's request for funds. Crawford has not appealed this ruling.

         Aside from this one instance, Crawford failed to apprise the superior court of concrete, case-specific reasons why he wanted to retain the various experts he talked about, and he failed to explain why these experts' evaluations or analyses would constitute a significant component of his defense case.

         The superior court denied Crawford's various requests for public funds to hire experts, and Crawford now argues that the superior court's rulings on this issue violated his right to due process of law.

         In particular, Crawford argues that the superior court committed error when the court denied Crawford's request for public funds to hire a medical expert. In his brief to this Court, Crawford asserts that he needed a medical expert who might support Crawford's assertions (1) that just before the shooting, the victim, Anthony Brown, strangled Crawford to the point where Crawford became unconscious or semi-conscious, and (2) that as a result of this alleged strangulation, even after Crawford regained consciousness, he was "deprived ... of the ability to accurately or rationally perceive his surroundings, including what he [mistakenly] believed to be his pursuit by Brown."

         As we explain in more detail in this opinion, we reject Crawford's claim of error because Crawford never informed the superior court of this theory of relevance when he made his requests for a medical expert. Under the pertinent decisions of the United States Supreme Court, an indigent defendant who seeks public funding for an expert must affirmatively explain the significance of, and the need for, that particular type of expert analysis. Because Crawford never informed the superior court of the theory that he currently proposes for needing a medical expert's analysis, we hold that the superior court did not commit error when it denied Crawford's request for public funding.

         To analyze Crawford's case, we must discuss other legal issues. Paramount among these issues is the question of whether an indigent criminal defendant is entitled to have the Public Defender Agency or the Office of Public Advocacy provide the funding for litigation support services - for example, clerical and secretarial services, investigative services, and consultation with experts - even though the indigent defendant declines legal representation at public expense through these agencies.

         To answer this question, we must interpret AS 18.85.100(a) - the statute that guarantees indigent defendants "[representation] by an attorney to the same extent as a person retaining an attorney" and "the necessary services and facilities of this representation". More specifically, we must decide whether the services described in this statute are a unified package of services that indigent defendants are entitled to receive when they invoke their right to counsel at public expense - or whether, instead, indigent defendants have a right to demand that the Public Defender Agency or the Office of Public Advocacy provide them with ancillary "services and facilities" at public expense even if they reject the assistance of a publicly funded attorney.

         In our earlier decision in Crawford's case - Crawford v. State, 337 P.3d 4 (Alaska App. 2014) - we addressed this question of statutory interpretation but did not answer it. Instead, because this is an issue of first impression in Alaska, and because the resolution of this issue will obviously affect many other criminal defendants, we asked for supplemental briefing - not only from Crawford and the State, but also from the Public Defender Agency and the Office of Public Advocacy. When those two agencies informed us that their interests in this litigation were adverse to Crawford's interests, we allowed the agencies to file amicus curiae briefs, but we appointed independent counsel to argue Crawford's side of this issue.

         Now, having fully considered this matter, we conclude that the various services described in AS 18.85.100(a)(1)-(2) are one integrated whole. The statute guarantees this package of services to indigent defendants who invoke their right to counsel at public expense. But the statute does not create separate and severable guarantees of public funding for each service listed in the statute.

         We additionally conclude (for reasons explained in this opinion) that Alaska Administrative Rule 12(e) does not authorize a court to directly appoint investigators or experts for criminal defendants.

         Administrative Rule 12(e) authorizes a court to appoint "counsel, or a guardian ad litem, or other representative" for an indigent person if the court determines that the appointment is not authorized by AS 18.85.100(a), and that the appointment is required by law or rule. Although Rule 12(e) anticipates that attorneys and guardians ad litem appointed under this rule might need the services of investigators or expert witnesses (and might ask the Court System to pay for these services), Rule 12(e) does not authorize a trial court to provide money directly to pro se defendants who wish to obtain these investigative or expert services.

         Our interpretation of AS 18.85.100(a) and Administrative Rule 12(e) raises other significant questions.

         First, there is the question of whether it is constitutional for a state to link representative services and ancillary services in this manner - that is, can the state require indigent criminal defendants to accept legal representation at public expense in order to obtain the other litigation support services at public expense?

         Second, if it is not constitutional to link these services - in other words, if indigent defendants who reject legal representation at public expense are nevertheless entitled to public funding for other litigation support services such as clerical staff, investigators, and experts - then where is this public funding to come from?

         We raise these questions because, ultimately, they must be answered, and because (depending on the answers) our legislature may be required to take action.

         We now explain our conclusions in more detail.

         Crawford's constitutional right to have expert witnesses and other support services funded at public expense, even though Alaska statutes and court rules currently do not provide public funding for these support services

         As a matter of constitutional law, indigent criminal defendants have a circumscribed right to obtain the services of experts at public expense. The seminal case on this point of law is Ake v. Oklahoma. [2]

         The indigent defendant in Ake was prosecuted for murder. Ake's attorney wished to present a defense of insanity, but the trial court refused a defense request to have Ake examined by a psychiatrist at public expense. [3] The Supreme Court reversed Ake's conviction, holding "that when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the constitution requires that a State provide access to a psychiatrist's assistance on this issue if the defendant cannot otherwise afford one." [4] More generally, the Supreme Court stated that the due process clause of the constitution guarantees indigent defendants "basic tools of an adequate defense". [5]

         In Ake, this "basic tool of an adequate defense" was an evaluation by a psychiatrist. But other courts, relying on Ake, have held that this due process guarantee can apply to non-medical experts as well. [6]

         Nevertheless, indigent criminal defendants are not entitled to experts at public expense simply for the asking. A defendant who seeks public funding for an expert under Ake must make a threshold showing that, given the facts of the case and given how the case will be litigated, the proposed expert's evaluation will be a significant component of the defense case. [7] Absent this showing, a court can properly deny a defendant's request for public funding.

         The Supreme Court clarified this point in Caldwell v. Mississippi, 472 U.S. 320, 323-24 n. 1; 105 S.Ct. 2633, 2637 n. 1; 86 L.Ed.2d 231 (1985) - where the Court held that a trial court can properly deny a defendant's request for public funds to hire experts when the defendant has offered only "undeveloped assertions that the requested assistance would be beneficial."

         For the reasons we are about to explain, we conclude that, with one exception (the request for DNA testing that we previously referred to), Crawford failed to offer the superior court sufficient information as to why the evaluation and/or testimony of his proposed experts would be a significant component of his defense. Crawford therefore failed to make the threshold showing required by Ake v. Oklahoma and Caldwell v. Mississippi.

         Because Crawford failed to meet this threshold showing, we need not decide whether an indigent defendant who shows a genuine need for experts or other litigation support services is entitled to public funding for these support services, even if the defendant rejects a court-appointed attorney - or whether, instead, the State of Alaska can require indigent defendants to accept legal representation at public expense (either through the Public Defender Agency or the Office of Public Advocacy) if the defendants wish to obtain public funds for litigation support services.

         A detailed look at the litigation of this issue in Crawford's case

         The pre-trial proceedings in Crawford's case lasted more than a year. During those months, Crawford indicated at various times that he wanted to consult a variety of experts in connection with his defense - including a medical expert, a psychiatric expert, a forensic DNA analyst, a toxicology expert, a "consciousness" expert, a "choking" expert, and an expert on child molestation. But most of these proposed experts were mentioned only in passing by Crawford and his standby attorneys.

         There was one instance where Crawford offered a detailed explanation of why he believed that a particular expert's testimony would be a significant component of his defense. Crawford told the superior court that he wanted to hire a DNA analyst to run another test of the victim's fingernails for DNA. Crawford believed that this DNA testing would show that the victim had sexually abused Crawford's children - unbeknownst to Crawford at the time of the shooting.

         After hearing this offer of proof, the superior court concluded that a reasonable defense attorney would not spend the thousands of dollars it would take to procure this additional DNA testing, so the court denied Crawford's request for public funds to pay for the proposed testing. Crawford has not appealed this ruling.

         The only other experts for whom Crawford offered any kind of explanation were the "medical" expert and the "psychiatric" expert that Crawford mentioned in his "[Criminal] Rule 16 Notice and Request for [Office of Public Advocacy] Assistance" filed in February 2009. In this pleading, Crawford announced that he intended to call a "medical expert" and a "psychiatric expert" at his trial.

         With regard to the medical expert, Crawford stated that he intended to present testimony "regarding the physical effects of being choked unconscious[, ] including the repetitive blackouts that defendant suffered on the night in question as a result of being assaulted by the alleged victim."

         With regard to the psychiatric expert, Crawford stated that he intended to present testimony suggesting that his half-sister, Kerri Nichols (the fiancée of the shooting victim) had "symptoms of Dissociative Identity Disorder", and that this condition "[a]ffected her ability to accurately recall the [events] that occurred on the night in question."

         About a week after Crawford filed this pleading, the State filed an objection to Crawford's notice, arguing that Crawford had failed to meaningfully comply with Criminal Rule 16 - both because he had failed to provide names and contact information for these proposed experts, and also because he had failed to supply any information about what these experts' opinions would actually be.

         This matter was discussed at a pre-trial conference the following month (March 2009). However, at this conference, Crawford did not offer any further description of the kind of medical expert he was talking about, or what role that expert's evaluation or testimony would play in Crawford's defense case.

         At this pre-trial conference, anattorney from the Office of Public Advocacy offered to speak with Crawford to find out exactly "for what purpose ... the medical expert [would] be hired", and then to forward Crawford's request to the Department of Administration to see if they would approve the expense.

         This matter was next mentioned again at a hearing in April, where the court addressed the State's objection to Crawford's notice of experts. During the discussion of whether Crawford's notice was adequate, Crawford told the court that he wanted to hire a medical expert "who [could] testify to [his] condition on that night." But Crawford also told the court that he had not yet identified any potential expert witnesses.

         At another hearing held the following month (on May 5th), Crawford told the court that he still had not contacted any potential expert witnesses. At that point, Crawford's trial was scheduled to begin in seven weeks - on June 22, 2009.

         On June 10th, at a pre-trial conference, the court addressed the fact that the scheduled trial date was approaching, and that Crawford still had not given the State notice of any medical expert. The court told Crawford that if he decided to get a medical expert, he needed to promptly notify the State of what that expert would testify about, so that the State would have sufficient opportunity to get their own expert.

         The court held a trial call in Crawford's case the following week (on June 16th). At that trial call, the prosecutor told the court that Crawford had mentioned two potential witnesses - "one relating to strangulation, and one relating to child molestation" - but that Crawford had not yet given notice of who these experts were, or what their anticipated testimony might be.

         In response, Crawford told the court only that he was "going to continue to try and find [an] expert", and he ultimately asked for a continuance of the trial to give him time to do so.

         The record shows that, at this time, Crawford and his standby attorney at the time, Mark Pawlowski, were actively working on procuring unspecified expert witnesses. In Pawlowski's submission of expenses to the Court System, he listed 1.7 hours spent on June 9, 2009 "interview[ing] potential expert witnesses".

         But on the morning of June 29th, when the parties assembled for trial, Crawford still had not yet given notice of any proposed experts.

         As it turned out, the superior court continued Crawford's trial again, this time to give Crawford several weeks to litigate his alleged problems with the State's pre-trial discovery.

         Then, on August 3, 2009, Crawford filed a pleading in which he announced that he was "terminating the services of Mark Pawlowski" as his standby counsel. In this pleading, Crawford complained that Pawlowski had not provided him with any assistance. In particular, Crawford complained that he still "[did] not yet have the name of even one potential expert witness or investigator."

         At a pre-trial hearing held that same day, Crawford told the court that he still needed more time to contact potential medical experts. The court granted Crawford a three-month continuance for this purpose - rescheduling Crawford's trial for November 2, 2009.

         We note, however, that the record contradicts Crawford's assertion that he "[did] not yet have the name of even one potential expert witness or investigator" at the beginning of August. The record shows that, as of mid-July, either Crawford or Pawlowski had been in contact with a potential expert witness - although it was not the medical expert that Crawford had repeatedly referred to. Instead, Crawford and/or Pawlowski had contacted a DNA testing laboratory in Colorado to solicit their services.

         This is demonstrated by the fact that on August 10th (one week after Crawford told the court that he did not have the name of a single potential expert witness), Crawford filed a pro se pleading in which he asked the superior court to order public funding under Administrative Rule 12(e)(5) in the amount of approximately $15, 000 to pay for DNA analysis and expert witness fees.

         Crawford's request was supported by a 3-page "Proposal for Requested Discovery". This document was generated by the Carlson Company, a DNA laboratory in Colorado, and it was dated July 21, 2009.

         Thus, when Crawford told the court on August 3rd that he had not yet been able to contact any potential experts, this was not entirely accurate.

         A few days after Crawford filed his request for public funds to pay for the Colorado laboratory's DNA testing, Crawford filed an "Affidavit [and] Request for Expedited Hearing on Funding of Necessary Defense Services". In this pleading, Crawford asserted that, under the Supreme Court's decision in Ake v. Oklahoma, he was entitled to public funding "for necessary investigative and expert witness services". But Crawford offered no specifics as to what investigative or expert witness services he was referring to - other than the request for DNA testing that he had already submitted.

         At this point, as we noted earlier, Crawford's trial was scheduled for November 2, 2009. Crawford made no further application to the court concerning investigators or expert witnesses until his case was called for trial on November 2nd.

         In the interim, new standby counsel (Glenda Kerry) had been appointed to assist Crawford, and Crawford's case had been re-assigned to Superior Court Judge Eric A. Aarseth.

         With the prospective jurors summoned and waiting, Judge Aarseth tried to make sure that there were no pending motions that needed to be resolved before jury selection began. It turned out that there was a problem securing the attendance of one of the witnesses that Crawford wanted to call, so Crawford agreed to a delay of the trial until that matter could be resolved.

         Crawford then asked Judge Aarseth to address his earlier request for public funding "of some expert testing" (i.e., the proposed DNA testing). But then Crawford switched gears - turning from his previous request for DNA testing, and addressing his desire to hire a "medical expert":

Crawford: [O]ne of the many things I've requested from the beginning was a medical expert. I mean, I've said from the beginning, I - I know I shot the guy, but I was barely able to stand, walk, breathe, see, [or] think. There's a lot of pieces missing. I mean, I reckon I know what I told the cops, and what I can tell from bullet trajectories and things, [and] what I think happened isn't even what happened. And, I mean, an expert could be very beneficial to me on that issue[.]

         Crawford then asserted that he wanted to hire even more experts:

Crawford: It wasn't just that one [DNA] expert that [I] was asking for money for. It's really - I mean, the State has eight or ten experts. I wanted at least three or four on certain issues, and I never got a - I mean, it's kind of hard to get an expert lined up and ask the court for money when you don't have the money in the first place. So I was never able actually to get my hands on a medical doctor, you know, or any of the other - or a toxicology expert, because I never had the funding. So I couldn't really submit requests to pay this guy because I never had a guy to pay. ... [Y]ou know, I'm going to trial with no experts against maybe ten experts [for the State].

         Crawford then argued that, as a matter of constitutional right, "experts or other services should be provided [to indigent defendants] at public expense [if] a reasonable attorney would provide them for a defendant who had the ability to pay."

         At this point, Judge Aarseth asked Crawford to specifically identify what experts and other services he was talking about:

The Court: So let me ask you, Mr. Crawford, this: When have you provided me with a CV, or [with] any type of information about what [expert] witness it is that I'm supposed to [order] one of these ...

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