Opinion
Court of Appeals No. A-12246 No. 6682
08-15-2018
EUGENE J. BOURDON JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 1JU-14-1135 CR
MEMORANDUM OPINION
Appeal from the District Court, First Judicial District, Juneau, Keith B. Levy, Judge. Appearances: Laurence Blakely, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Eugene J. Bourdon Jr. was charged with failure to register as a sex offender in the second degree. At his arraignment, Bourdon stated that he wanted to represent himself at trial, and District Court Judge Keith B. Levy held a representation hearing. But when the judge questioned Bourdon about self-representation, Bourdon was either unwilling or unable to give adequate answers, and so the judge could not determine whether Bourdon was capable of coherently presenting his own case. In addition, Bourdon — who espoused a set of unconventional legal theories — would not unambiguously commit to refrain from arguing to the jury any legal theories that the judge ruled inapplicable to the case.
AS 11.56.840.
For these reasons, the judge denied Bourdon's request for self-representation. We conclude that the judge's ruling was not an abuse of discretion, and we affirm Bourdon's conviction.
Background facts
In 2000, Bourdon was convicted of four counts of second-degree sexual abuse of a minor. He was required to register annually as a sex offender and to provide written notice of address changes. Bourdon was released from a halfway house on July 31, 2014, but thereafter failed to register a new address. The State accordingly charged him with one count of second-degree failure to register as a sex offender.
During his arraignment, Bourdon announced that he wanted to represent himself. Over Bourdon's objections, the court appointed a temporary representative and scheduled a self-representation hearing. At this hearing, Bourdon challenged the jurisdiction of the court under the Uniform Commercial Code and admiralty law. Bourdon stated that he wished to argue this jurisdictional issue to the jury. Bourdon claimed that he believed that the case against him was an "admiralty matter" because the court had "yellow fringe around [its] flag, a bald eagle sitting on top of that pole, and [the] flag's hanging on a pole ... [whereas Bourdon] stand[s] on the soil of Alaska, you know, [Bourdon has] ... an American flag with no yellow fringe around it."
Bourdon elaborated that admiralty law is the "law of the sea, of law of contract [sic]," and he reiterated that because the flag had fringe on it, this was not a criminal proceeding, but a maritime proceeding. He asserted that "you ... are trying to get me on board your ship so I can basically waive all my constitutional rights." He insisted that the court was "either an admiralty-maritime court or a corporation court," and that if it was a corporation court, then the judge was an administrative judge who couldn't impose laws. Bourdon further argued that, because he never signed a contract with the State, he could not be charged with a crime in an admiralty-maritime court in Alaska.
The judge asked Bourdon if he knew what the State had to prove in order to convict him of failure to register as a sex offender. Bourdon responded that he believed that the State had to "prove I signed a contract with the victim, the injured party." The judge then inquired whether Bourdon could follow court orders to refrain from arguing certain things to the jury if so instructed. Bourdon indicated that he reserved the right to make those arguments to the jury.
The judge ultimately ruled that Bourdon could not represent himself. The judge reasoned in part that self-representation was not feasible because Bourdon stated that he was reserving his right to argue to the jury as he saw fit regardless of the court's rulings.
At the outset of Bourdon's trial, his defense attorney renewed Bourdon's self-representation request. Citing Falcone v. State, the attorney noted that a defendant's intention to argue the applicability of the UCC or admiralty law is not fatal to a self- representation request. But the judge explained that he had previously denied Bourdon's request to represent himself, not because Bourdon espoused eccentric theories, but rather because Bourdon insisted that he would argue those propositions to the jury, even if the judge ruled that they were inapplicable to Bourdon's case. The judge also explained that Bourdon's refusal to comply with judicial orders imperiled courtroom decorum.
Falcone v. State, 227 P.3d 469 (Alaska App. 2010).
The judge again invited Bourdon to solve the issue by committing unequivocally that he would follow the court's orders during trial. Bourdon instead asserted that the judge was "tampering with [his] evidence by denying [him his] constitutional right to assert evidence" and that, until the judge showed "standing that [he had] actual authority, apparent authority, ostensible authority to prove up signature authority, [Bourdon was] here on special limited appearance."
The judge then inquired whether Bourdon could follow the rules of evidence, explaining, "[I]t's not just a matter of telling your story. If you intend to present evidence ... you will have to put witnesses on to do that, or testify yourself, or both, and that's difficult to do when you don't have a lawyer. So, do you understand that?" Bourdon replied, "No, I will not understand anything that you're saying right now, because you're putting me under your feet, and I ... object to that."
The judge then told Bourdon that he intended to pose questions from a self-representation checklist, and that without comprehensible answers to these questions, he could not determine whether Bourdon understood the advantages of counsel and the risks of self-representation. But Bourdon refused to answer these questions, stating, "I cannot ... [b]ecause you haven't proven you have actual authority, apparent authority, ostensible authority to produce signature authority. Until you do, this cannot proceed[.]"
The judge again denied Bourdon's request for self-representation. The judge reasoned that, while he might have been willing to give Bourdon the benefit of the doubt regarding Bourdon's willingness to follow the court's instructions, Bourdon's refusal to answer the judge's questions effectively sabotaged the judge's ability to determine whether Bourdon knowingly, intelligently, and voluntarily waived his right to counsel.
The judge did not abuse his discretion when he denied Bourdon's request for self-representation
Criminal defendants have a constitutional right to reject counsel and represent themselves at trial if they "voluntarily and intelligently [elect] to do so." This right of self-representation may be restricted only in narrow circumstances "in order to prevent a perversion of the judicial process." But, as we noted in James v. State, a judge must conduct a careful inquiry before ruling on a request for self-representation:
Faretta v. California, 422 U.S. 806, 807 (1975) (establishing the right to self-representation under the Sixth and Fourteenth Amendments); McCracken v. State, 518 P.2d 85, 89-91 (Alaska 1974) (holding that the right to self-representation is a retained right under article 1, section 21 of the Alaska Constitution).
McCracken, 518 P.2d at 91; Falcone, 227 P.3d at 472.
[A] trial in which [the defendant] is unrepresented by counsel is [often] a farcical effort to ascertain guilt. Thus, [even though] a defendant has clearly and unequivocally declared his or her intention to appear pro se, the trial judge must [nevertheless] conduct a thorough inquiry [before allowing the defendant to proceed without an attorney].
James v. State, 730 P.2d 811, 814 n.1 (Alaska App. 1987).
During this inquiry, the judge must advise the defendant about the advantages of proceeding with counsel and the risks of self-representation, and must determine whether the defendant is at least minimally able to function in the courtroom environment and to present a coherent case. The judge must also determine whether the defendant is "willing to conduct himself with at least a modicum of courtroom decorum." We review a judge's ruling denying self-representation for abuse of discretion.
Shorthill v. State, 354 P.3d 1093, 1109 (Alaska App. 2015).
McCracken, 518 P.2d at 92.
Falcone, 227 P.3d at 473. --------
Here, Bourdon gave the court good reason to think that he might not be able to understand the legal issues in the case, to organize himself and mount a coherent defense, and to conform himself to proper courtroom decorum in the sense of following the court's orders not to argue legal irrelevancies to the jury. But the judge was never able to get to the bottom of these potential concerns because Bourdon either deflected the judge's inquiries with irrelevant responses, or denied altogether the court's right to even conduct the inquiry. Thus, the judge was unable to complete the thorough inquiry that our case law requires in order to ensure that a defendant does not act in blind ignorance, has the cognitive and emotional wherewithal to proceed with at least minimal effectiveness, and will refrain from improperly disrupting the judicial process.
We therefore conclude that the judge did not abuse his discretion when he denied Bourdon's request to represent himself at his trial.
Conclusion
We AFFIRM the judgment of the district court.