Opinion
Court of Appeals No. A-8395.
January 5, 2005.
Appeal from the Superior Court, Third Judicial District, Palmer, Beverly W. Cutler, Judge. Trial Court No. 3PA-01-01172 CR.
Scott A. Sterling, Sterling DeArmond, P.C., Wasilla, for Appellant.
Kenneth J. Diemer, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
A jury convicted Fred M. Esguerra of two counts of sexual abuse of a minor in the first degree and one count of attempted sexual abuse of a minor in the second degree. The victims of Esguerra's abuse were his two daughters, B.E. and C.P. Superior Court Judge Beverly W. Cutler sentenced Esguerra to 12 years with 2 years suspended.
AS 11.41.434(a)(1).
AS 11.31.100(a); AS 11.41.436.
Esguerra appeals his convictions on several grounds. We conclude that these grounds have no merit and affirm Esguerra's convictions. Esguerra also argues that his sentence is excessive. We conclude that the sentence is not clearly mistaken.
Judge Cutler did not err in failing to dismiss the second indictment against Esguerra on the ground that she had dismissed the first indictment with prejudice
A grand jury indicted Esguerra on several charges relating to the sexual abuse of his children. Esguerra moved to dismiss the indictment on three grounds: (1) the State presented inadmissible hearsay to the grand jury; (2) the charges in the indictment were not specific enough to allow Esguerra to defend himself, and (3) the charges should be dismissed with prejudice because of pre-indictment delay. The State did not oppose Esguerra's motion. Judge Cutler granted the unopposed motion to dismiss the indictment. She signed an order, prepared by Esguerra's attorney, that stated that the indictment was dismissed "with prejudice." At the same time Judge Cutler ordered that Esguerra would be held in jail. Handwritten on the dismissal, Judge Cutler provided that Esguerra was to be held in custody under his present bail conditions until a status hearing, which was scheduled to be held in 12 days.
At the status hearing, the State asked for an additional week to present the case again to the grand jury. Esguerra objected to the delay. But he did not object on the ground that Judge Cutler had dismissed the first indictment with prejudice nor did he argue that the State should be barred from attempting to reindict him.
The grand jury again indicted Esguerra. Although Esguerra filed several motions to dismiss the second indictment, he never argued that the indictment should be dismissed because Judge Cutler had dismissed the first indictment with prejudice.
Under these circumstances, it is clear that Judge Cutler did not intend to dismiss Esguerra's indictment with prejudice. It is apparent that she dismissed the indictment because the State did not oppose the defendant's motion. Had Judge Cutler intended to dismiss the indictment with prejudice, she would not have ordered Esguerra held until the State could reindict him. And it seems obvious that, if Esguerra thought that Judge Cutler had dismissed the indictment with prejudice, he would have objected to the second indictment on this ground.
In his original motion to dismiss, Esguerra asserted only one ground which, if established, would have authorized Judge Cutler to dismiss the indictment with prejudice. That was the issue alleging pre-indictment delay. But Judge Cutler did not rule on this issue. In fact, as we will discuss later in this decision, Judge Cutler rejected Esguerra's pre-indictment delay allegation when she directly ruled on it. It is therefore obvious that Judge Cutler did not dismiss Esguerra's first indictment with prejudice.
Judge Cutler did not err in denying Esguerra's motion to dismiss the second indictment on the ground that the State presented inadmissible hearsay to the grand jury.
Criminal Rule 6(r)(2) provides that in criminal prosecutions of certain sexual crimes, such as the ones faced by Esguerra, the State may present hearsay evidence of statements made by a child who is a victim of an offense under certain criteria. The criteria include: (1) the circumstances of the hearsay statement indicate reliability; (2) the child is under 10 years of age when the statement is admitted; (3) additional evidence must corroborate the statement; and (4) the child must testify at the grand jury proceedings or be available to testify at trial.
At the grand jury proceeding, the State presented extensive hearsay testimony concerning statements made by the alleged victims, C.P. and B.E. It is undisputed that C.P. and B.E. were under 10 years of age when the testimony was admitted. And both girls were available to testify and did testify at trial. Therefore, the only question before Judge Cutler was whether the hearsay statements were made under circumstances that indicated reliability and whether there was additional corroborative evidence of the statements. Judge Cutler carefully reviewed the grand jury proceedings, and concluded that the hearsay statements of C.P. and B.E. were adequately corroborated and that the circumstances of the statements indicated reliability.
We agree with Judge Cutler that the hearsay evidence which the State presented was permissible under Criminal Rule 6(r)(2). In Murray v. State, we analyzed a very similar case. In Murray, we concluded that the hearsay statements of the children who were the victims of the defendant's sexual abuse were properly admitted under Criminal Rule 6(r)(2). Furthermore, we noted that "one child's claims of sexual abuse may corroborate another child's claim against the same individual." Also, as Judge Cutler noted, the testimony of Z.E., the girls' older brother, corroborated the testimony of C.P. and B.E. We accordingly conclude that Judge Cutler did not err in denying Esguerra's motion to dismiss the indictment on this ground.
770 P.2d 1131 (Alaska App. 1989).
Id. at 1136-38.
Id. at 1138 (citation omitted).
Judge Cutler did not err in refusing to dismiss the indictment based on pre-indictment delay
The due process clauses of both the United States and Alaska Constitutions protect an accused person against unreasonable preaccusation delay. The purpose of prohibiting unreasonable preaccusation delay is to protect the accused's ability to present a defense. In order to prevail on a claim of unreasonable preaccusation delay, the accused must establish the absence of a valid reason for the delay and a showing of actual prejudice. The accused bears the burden of establishing both the absence of a valid reason for the delay and the existence of actual prejudice. Actual prejudice is defined as "not merely potential or possible prejudice . . . [b]y actual prejudice we mean a particularized showing that the unexcused delay was likely to have a specific and substantial adverse impact on the outcome of the case."
State v. Mouser, 806 P.2d 330, 336 (Alaska App. 1991) (citations omitted).
Id.
Id.
Id. at 337 (comparing State v. Jones, 759 P.2d 558, 568 (Alaska App. 1988)).
Esguerra argues that, by the time he was indicted, "almost a year had elapsed from the date of the alleged assault on C.P., and approximately eight to twelve months had elapsed from the date of the alleged assault on B.E." He argues that he demonstrated "that there was a lag of five months between notice to the State and the indictment." He argues that, because of the young age of the children, "five months is a lifetime." He argues that the delay affected the ability of the children to recall the incident and testify accurately.
Judge Cutler concluded that Esguerra had not shown that the State engaged in any undue delay in bringing the charges. She also found that Esguerra had not alleged any actual prejudice. Judge Cutler's findings are supported by the record. In order to show prejudicial delay, the defendant must show more than "generalized claims of lost witnesses and faded memories. . . ." But this is exactly the prejudice which Esguerra claimed. Furthermore, Judge Cutler could certainly conclude that the delay which Esguerra alleged was not remarkable for this kind of case. We conclude that Judge Cutler did not err in refusing to dismiss the indictment based on preaccusation delay.
Id.
Esguerra raises an additional argument. He argues that Judge Cutler erred in allowing the State to hold him for fifteen days from the dismissal of the first indictment until the State obtained a second indictment. After dismissing the indictment, Judge Cutler ordered Esguerra detained under Criminal Rule 12(g) which authorizes a court, after dismissing an indictment, to "order that the defendant be held in custody or that bail be continued for a specified time pending the filing of a new indictment. . . ." Esguerra argues that Judge Cutler only had authority to hold him, since he was in custody, for a maximum of ten days under the provisions of Criminal Rule 5(e)(4)(A). That rule provides that, if a defendant is being held on a felony charge and is in custody, that the defendant is entitled to a preliminary examination within ten days following his initial appearance before the court. Esguerra argues that Criminal Rule 5 places a limitation on how long the court could hold him under Criminal Rule 12. But Criminal Rules 5 and 12 deal with different situations. Criminal Rule 5 applies to situations where a defendant is first brought into court on a felony charge. Criminal Rule 5 requires the court to hold a preliminary hearing within ten days to determine whether there is sufficient evidence to support that charge. Criminal Rule 12(g) applies to a situation where the court has dismissed an indictment. A grand jury has already determined that there is probable cause. Therefore, Criminal Rule 12(g) appears to allow the court to hold the defendant for a specified time, but does require the court to set a time limit. Under Rule 12(g), the time which the State can hold the defendant before reindicting him must be specified, but is not limited to ten days.
Even if the State violated Criminal Rule 5, Esguerra's remedy was to be released from custody and to have the charges against him temporarily dismissed. He would not be entitled to dismissal of the charges with prejudice. Therefore, even assuming that Esguerra was correct that the court violated Criminal Rule 5, he would not be entitled to any remedy on appeal, other than the fact that he, of course, gets credit towards his sentence for the time which he served in jail.
Sproates v. State, 81 P.3d 301, 302 (Alaska App. 2003).
The record supports the conclusion that B.E. was properly sworn before testifying
Esguerra argues that B.E. did not swear to tell the truth before testifying. But Esguerra never raised this argument at trial so he must therefore establish plain error.
It is clear from the record that Judge Cutler established that B.E. knew the difference between telling the truth and telling a lie. Furthermore, the record supports the conclusion that B.E. did promise to tell the truth to the jury when she testified. We accordingly conclude that Esguerra did not establish plain error.
Judge Cutler did not err in admitting B.E.'s prior interviews as prior inconsistent statements
B.E. testified at trial. She testified that there were three things that she was going to talk about, but she didn't remember two. The one thing that she did remember was that her father (Esguerra) taught her to play with herself, specifically to play with her "privates." She testified that she remembered talking to Trooper Escobar, and that she remembered the other two things at that time. She stated that she told Escobar the truth. However, she did not remember telling Escobar about the sexual abuse.
Trooper Escobar testified at trial to her interview with B.E. in which B.E. set out the details of Esguerra's sexual abuse. In addition, the court admitted into evidence the videotape of Trooper Escobar's interview with B.E. The State offered, and the court admitted, this testimony as a prior inconsistent statement under A.R.E. 801(d)(1). Esguerra argues that this was error.
A.R.E. 801(d)(1) permits the introduction of prior inconsistent statements of witnesses as substantive evidence. Alaska case law also provides that statements which are admitted as prior inconsistent statements under A.R.E. 801(d)(1) may be used as substantive evidence.
Richards v. State, 616 P.2d 870, 871-72 (Alaska 1980); Beavers v. State, 492 P.2d 88, 94 (Alaska 1971); Van Hatten v. State, 666 P.2d 1047, 1050-51 (Alaska App. 1983).
Esguerra points out that B.E. testified that she had no memory of the sexual abuse. He argues that, therefore, B.E.'s testimony was not inconsistent with her former statements in which she set out the details of the sexual abuse. In Wassilie v. State, we noted that there was some authority for the proposition "that a prior statement may not be inconsistent with genuine memory loss at trial." But we rejected this view. Instead, we adopted the majority view:
57 P.3d 719 (Alaska App. 2002).
Id. at 723 (footnote omitted).
If a witness claims not to remember the substance of a prior statement at trial, the witness's trial testimony is inconsistent with the prior statement for purposes of Rule 801(d)(1)(A). It is irrelevant for purposes of the rule whether the claimed memory loss is genuine or feigned because the claimed lack of memory at trial (whether genuine or feigned) is inconsistent with the witness's earlier claim to remember."
Id. at 723.
Judge Cutler did not err in admitting B.E.'s former statements as prior inconsistent statements.
Judge Cutler did not err in denying Esguerra's counsel's motion to withdraw
During the trial Esguerra expressed dissatisfaction with his appointed counsel. Apparently, Esguerra wanted his attorney to call specific witnesses. The attorney did not agree with Esguerra's requests. Esguerra's counsel moved to withdraw on the grounds that Esguerra wanted to pursue a course of action that counsel believed to be imprudent and not in Esguerra's best interest. Judge Cutler denied the motion to withdraw. She concluded that there was not an irreconcilable conflict of interest between Esguerra and his trial counsel.
We conclude that Judge Cutler did not err in refusing to allow Esguerra's counsel to withdraw. Esguerra's counsel made the motion in the middle of a jury trial. It is obvious that Esguerra and his counsel faced a difficult and emotional case. The reason that counsel advanced to withdraw was that Esguerra disagreed with his trial counsel's strategy. But the trial strategy was a matter for counsel to decide. Specifically, trial counsel has the duty to determine what witnesses to call in defending the case. Judge Cutler did not abuse her discretion in denying counsel's motion.
Judge Cutler did not err in denying Esguerra's motion for a continuance to obtain a psychiatric evaluation
During trial, Esguerra's counsel moved, first for a mistrial, and then for a continuance, in order to have Esguerra obtain a psychiatric evaluation. Judge Cutler denied the motion. Esguerra argues that this was error.
Alaska Statute 12.47.100(b) states that "[i]f . . . the attorney for the defendant has reasonable cause to believe that the defendant is presently suffering from a mental disease or defect that causes the defendant to be unable to understand the proceedings or to assist in the person's own defense, the attorney may file a motion for a judicial determination of the competency of the defendant. Upon that motion, . . . the court shall have the defendant examined by at least one qualified psychiatrist or psychologist. . . ."
Read literally, the statute could be interpreted to provide that the court is required, at the defense attorney's request, to have the defendant immediately examined by a qualified psychiatrist or psychologist. But this interpretation would enable a defense attorney to obtain a continuance and possibly scuttle a trial by raising such a motion. We are confident that this is not the intent of the statute.
The record demonstrates that Judge Cutler continually evaluated Esguerra's ability to understand the proceedings against him and to assist his trial counsel. And, when Esguerra made the motion, Judge Cutler concluded, from her perspective, that it did not appear that Esguerra was not competent to proceed. There is nothing in the record to support the conclusion that she erred in making this finding.
The jury's verdict on Counts III and IV were not inconsistent
In Count III, Esguerra was charged with digitally penetrating B.E. In Count IV, he was charged with attempted fellatio. The jury acquitted Esguerra in Count III, but convicted him in Count IV. Esguerra argues that the evidence, the hearsay statements of B.E., was the same for both counts. He therefore argues that the jury arrived at inconsistent verdicts. Esguerra did not raise this issue before the jury was discharged. Therefore, this court reviews the matter only for plain error.
See Roberts v. State, 680 P.2d 503, 507 (Alaska App. 1984) ("[U]nless inconsistency between two verdicts is obvious and appellate review is necessary to prevent manifest injustice, a timely objection will be required.").
Even Esguerra admits that the jury "may have concluded that B.E.'s statements concerning attempted fellatio were more credible than her statements concerning digital penetration." The State points out that the evidence that Esguerra attempted to get B.E. to perform fellatio on him was stronger than the evidence that Esguerra digitally penetrated B.E. The record supports this conclusion. We do not find that the jury verdicts are inconsistent.
The sentence which Judge Cutler imposed was not clearly mistaken
Esguerra was convicted of two counts of sexual abuse of a minor in the first degree, an unclassified felony with a presumptive term of 8 years for a first felony offender. He was also convicted of one count of attempted sexual abuse of a minor in the first degree, a Class A felony, with a presumptive sentence of 5 years of imprisonment for a first felony offender. Judge Cutler found that two aggravating factors applied to Esguerra's offenses: (1) that he knew or reasonably should have known that the victims of the offense were particularly vulnerable or incapable of resistance due to their extreme youth, and (2) that he had committed a sexual assault against one or more of his children. Judge Cutler sentenced Esguerra to a composite sentence of 12 years with 2 years suspended.
AS 11.41.434(b); AS 12.55.125(i)(1)(A).
AS 11.31.100(a) and AS 11.41.434; AS 12.55.125(c)(1).
AS 12.55.155(c)(5).
AS 12.55.155(c)(18)(B).
In Andrews v. State, this court concluded that sentences for defendants convicted of aggravated instances of sexual abuse of a minor should fall within the benchmark range of 10 to 15 years of actual imprisonment. In sentencing Esguerra, Judge Cutler acknowledged the Andrews benchmark. She found that Esguerra had very poor impulse control and concluded that he did not have "a high potential for rehabilitation."
707 P.2d 900 (Alaska App. 1985), aff'd 723 P.2d 85 (Alaska 1986).
Id. at 913.
We conclude that the sentence which Judge Cutler imposed is not clearly mistaken. Esguerra's case was clearly an aggravated case of sexual abuse of minors. And the sentence that Judge Cutler imposed fell within the Andrews benchmark range.
Conclusion
We have examined Esguerra's claims of error and conclude that they do not have any merit. We also conclude that the sentence which Judge Cutler imposed was not clearly mistaken.
The conviction and sentence are AFFIRMED.
I agree with my colleagues' resolution of this appeal, but I write separately to clarify my analysis of several of the points raised.
Did Judge Cutler dismiss the first indictment "with prejudice"?
Following Esguerra's initial indictment on several charges of sexual abuse, Esguerra attacked the indictment on three grounds: (1) that he had been subjected to prejudicial pre-indictment delay, (2) that the State had relied on inadmissible hearsay evidence at the grand jury, and (3) that the counts of the indictment, as drawn, were unconstitutionally vague.
Esguerra's motion to dismiss the indictment was accompanied by a form order for Judge Cutler's signature. This form order did not specify the ground(s) for dismissing the indictment, but it did state that the dismissal was "with prejudice" — wording that normally means the judge intends to bar the State from seeking a replacement indictment.
For reasons that are not revealed in the record, the district attorney's office chose not to oppose Esguerra's motion to dismiss the indictment. It appears that, after Judge Cutler received word that the motion was unopposed, she signed Esguerra's form order without noting the "with prejudice" language.
Judge Cutler's other contemporaneous actions demonstrate that she did not intend the dismissal to be with prejudice. As the majority opinion points out, Judge Cutler added a handwritten comment to the form order of dismissal, directing that Esguerra should be held under the same bail conditions until the State presented the case again to the grand jury. This handwritten addition to the order is obviously inconsistent with any purported intent to dismiss the charges against Esguerra with prejudice.
Moreover, of Esguerra's three attacks on the indictment, only one of them — the claim of pre-indictment delay — potentially justified a dismissal with prejudice. Esguerra's other two attacks on the indictment (presentation of inadmissible hearsay, and vaguely worded counts) might have justified requiring the State to obtain a new indictment, but they would not have justified a dismissal with prejudice.
Because Esguerra's form order did not specify the grounds for dismissing the indictment, it is unclear (from the face of the order) which of Esguerra's grounds for dismissal Judge Cutler believed were meritorious. However, ensuing events show that Judge Cutler did not dismiss the first indictment for pre-indictment delay — because, when Esguerra raised this same attack on the second indictment, Judge Cutler expressly found that the State had not engaged in improper pre-indictment delay.
Thus, Judge Cutler's dismissal of the initial indictment must have been based on one of the two other grounds raised by Esguerra. And it would have been an abuse of discretion for Judge Cutler to dismiss the indictment with prejudice for either of those two reasons.
Based on all of this, it is clear that, despite the wording of the form order that Judge Cutler signed, the judge did not intend to dismiss Esguerra's first indictment with prejudice.
Was Esguerra held in jail for an unlawfully long time between the dismissal of the first indictment and the grand jury's return of the second indictment?
As explained above, Judge Cutler ordered Esguerra held in custody pending the State's second presentation of his case to the grand jury. Ultimately, Esguerra spent fifteen days in jail awaiting the return of the second indictment. He argues that this was a violation of Criminal Rule 5(e)(4)(A), which declares that a felony defendant's preliminary hearing must ordinarily be held within ten days of the defendant's arrest if the defendant remains in custody.
As the majority opinion correctly points out, Esguerra's situation was not governed by Criminal Rule 5(e)(4), but rather by Criminal Rule 12(g), which states that if the superior court grants a motion to dismiss an indictment, the court "may also order that the defendant be held in custody or that bail be continued for a specified time pending the filing of a new indictment". (Emphasis added)
I agree with my colleagues that Rule 12(g) does not have specific time limits like the ones found in Rule 5(e)(4), and that Rule 12(g) should not be interpreted to incorporate the Rule 5(e)(4) time limits by reference. Nevertheless, I do not construe Rule 12(g) to authorize the superior court to hold a defendant for an unreasonable length of time pending reindictment (so long as the superior court specifies that length of time in its order). Such a rule would lend itself to abuse. If the State does not reindict a defendant within a reasonable amount of time, the defendant should be entitled to seek release from bail conditions. And, although the time limits listed in Rule 5(e)(4) may not, strictly speaking, be controlling in situations governed by Rule 12(g), those time limits at least provide useful benchmarks for assessing the reasonableness of the delay in a particular case.
I do no more than discuss this issue here. It is not necessary to resolve this question of law in Esguerra's case because, even if Esguerra was held for an unreasonably long time between the dismissal of his first indictment and the return of his second indictment, his remedy would not be dismissal of the charges following his trial. Rather, his remedy would be something that is no longer available: release from custody and temporary dismissal of the charges pending his reindictment. See Sproates v. State, 81 P.3d 301, 302 (Alaska App. 2003). Moreover, to the extent that Esguerra was held in jail too long pending his second indictment, he has now received credit against his sentence for the extra days he served in jail.
Was Esquerra's daughter, B.E., allowed to testify without taking an oath or otherwise affirming her obligation to tell the truth?
Esguerra asserts that his daughter, B.E., was allowed to testify at his trial without promising to tell the truth. Alaska Evidence Rule 603 states that, "[b]efore testifying, every witness shall be required to declare that [they] will testify truthfully". Rule 603 does not specify the wording of the witness's declaration; rather, the rule simply states that the witness's declaration must consist of "[an] oath or affirmation administered in a form calculated to awaken the witness's conscience and impress the witness's mind with the duty [to testify truthfully]." Esguerra argues that B.E. never took such an oath or made such an affirmation.
The State's brief focuses on those parts of the record which demonstrate that B.E. understood the difference between truth and falsehood. Indeed, the record is clear that B.E. understood the difference between telling the truth and telling a lie. But this does not answer Esguerra's contention. The fact that B.E. understood the difference between telling the truth and telling a lie does not resolve whether (1) B.E. understood that, when she testified, she was obliged to tell the truth, and (2) she indeed promised to do this.
The answers to these latter two issues must be gleaned from the following colloquy between Judge Cutler and B.E., which was interrupted by Esguerra:
The Court: See these people out here? [an apparent reference to the jurors] Can you promise to tell them the truth?Esguerra: I miss her.
Defense Attorney: I know.
The Court: [still addressing B.E.] Can you say "yes" or "no"?B.E.: Yes.
The Court: Okay. And you're not going to tell any lies? Okay.
Because Esguerra did not object at trial, we assess his claim of error under the plain error doctrine. That is, we are to reverse only if it is clear that B.E. failed to take the requisite oath or make the requisite affirmation to tell the truth.
Viewing the above-quoted portion of the record in the light most favorable to upholding the superior court's judgement, it appears that B.E. initially gave an affirmative — albeit non-verbal — answer to Judge Cutler's question, "Can you promise to tell [the jurors] the truth?". Then, when Judge Cutler pressed B.E. to answer out loud ("Can you say `yes' or `no'?"), B.E. responded by answering "yes". And finally, when Judge Cutler asked B.E. to affirm that she was "not going to tell any lies", B.E. affirmed (again, non-verbally) that she would not tell any lies.
Viewed in this light, the exchange between Judge Cutler and B.E. satisfied the requirements of Evidence Rule 603. Accordingly, Esguerra has failed to show plain error.
Should Esguerra's attorney have been allowed to withdraw in the middle of trial?
During trial, a conflict developed between Esguerra and his attorney: they disagreed as to which witnesses to call on behalf of the defense. This disagreement became so heated that, at one point, the attorney moved to withdraw from the case. Judge Cutler refused to allow the attorney to withdraw.
On appeal, Esguerra argues that Judge Cutler abused her discretion and that his attorney should have been allowed to withdraw in the middle of trial. Esguerra relies on Alaska Professional Conduct Rule 1.16(b)(3), which states that a lawyer may move to withdraw from representing a client if "[the] client insists upon pursuing an objective that the lawyer considers repugnant or imprudent".
(Rule 1.16(b) places two limitations on an attorney's right of withdrawal. First, the lawyer may withdraw only "if withdrawal can be accomplished without material adverse effect on the interests of the client". And second, a court has the authority to order the lawyer to continue representing the client notwithstanding the existence of good cause for terminating the representation.)
Professional Conduct Rule 1.16(b), introductory paragraph.
Professional Conduct Rule 1.16(b), introductory paragraph, and (c).
Esguerra argues that if the defense attorney found Esguerra's choice of defense witnesses to be "imprudent", then the attorney had the right to withdraw from the case under Rule 1.16(b)(3). But Rule 1.16(b)(3) does not refer to a client's imprudent ideas about how to litigate a case. Rather, Rule 1.16(b)(3) refers to situations in which a client insists upon pursuing an imprudent "objective". This word, "objective", is drawn from the phrasing of Professional Conduct Rule 1.2, the rule that codifies the division of authority between a lawyer and a client.
Professional Conduct Rule 1.2(a) states that a lawyer must "abide by a client's decisions concerning the objectives of [the] representation" (emphasis added), but, with certain specified exceptions, it is the lawyer who decides "the means by which [these objectives] are to be pursued". The Comment to this rule recognizes that it is not always possible to draw "[a] clear distinction between objectives and means" — but, in general, "the lawyer should assume responsibility for technical and legal tactical issues".
Comment to Professional Conduct Rule 1.2, "Scope of Representation", first paragraph.
(Rule 1.2(a) specifies five types of decisions which, even though they might be viewed as tactical, are reserved to the defendant in a criminal case: what plea to enter, whether to accept an offer of settlement, whether to waive jury trial, whether to take the stand, and whether to appeal.)
The distinction between objectives and means is further amplified in the Annotation to Rule 1.2 of the American Bar Association's Model Rules of Professional Conduct (the source of Alaska's Rule 1.2). This ABA Annotation states, in pertinent part:
The distinction between objectives and means is often expressed as the difference between decisions that are procedural or tactical in nature and decisions that directly affect the ultimate resolution of the case or the substantive rights of the client. The lawyer generally has control over the former, and the client over the latter.
. . .
[D]ecisions that involve tactics and trial strategy are reserved for the professional judgment of the lawyer after consultation with the client. See generally ABA Standards for Criminal Justice, Defense Function Standards 4-3.1(b), 4-5.2(b) (3rd ed. 1993). See also . . . People v. McKenzie, 668 P.2d 769 (Cal. 1983) (lawyer makes tactical and strategic decisions such as what witnesses to call, how to conduct cross-examination, choice of jurors, and motions); State v. Davis, 506 A.2d 86 (Conn. 1986) (general rule is still that witness selection is tactical decision for lawyer, notwithstanding state constitutional provision that gives defendant[s] [the] right "to be heard by himself and by counsel . . . and to have compulsory process to obtain witnesses in his behalf"); State v. Mecham, 9 P.3d 777 (Utah 2000) (lawyer retains responsibility for making tactical decisions, including whether to pursue motion to suppress evidence).
Annotated Model Rules of Professional Conduct (5th ed. 2003), Annotation to Model Rule 1.2(a), pp. 30 35.
This distinction between "objectives" and "means" is crucial to understanding Professional Conduct Rule 1.16(b)(3). This rule authorizes an attorney to withdraw from representing a client if the client insists upon pursuing an objective that the lawyer considers "repugnant or imprudent". The reason for allowing an attorney to seek withdrawal in these circumstances is that, under Rule 1.2(a), the client has the controlling decision concerning the objectives of the representation. Thus, if the lawyer-client relationship continues, the attorney will be professionally obliged to pursue the client's chosen objective even though the lawyer finds this objective offensive or ill-conceived.
On the other hand, when (as here) a lawyer and client disagree concerning the means by which a case is to litigated, there is no need for the attorney to seek withdrawal — because, under Rule 1.2(a), the attorney has the controlling decision concerning strategy and tactics at trial.
From the Comment to Alaska Rule 1.2(a), and from the Annotation to ABA Model Rule 1.2(a), it is clear that the choice of defense witnesses (other than the decision as to whether Esguerra himself should testify) was a tactical matter reserved to Esguerra's defense attorney. That is, the choice of defense witnesses was a "means", not an "objective", for purposes of apportioning authority between lawyer and client under Professional Conduct Rule 1.2(a) — and for purposes of construing the defense attorney's right to withdraw under Professional Conduct Rule 1.16(b)(3).
Even though Esguerra disagreed with his attorney concerning which witnesses to call during the defense case, and even though the defense attorney may have found Esguerra's proposed choice of witnesses to be "imprudent", the selection of witnesses was not an "objective" of the representation. Thus, even though Esguerra may have vehemently disagreed with his attorney over the choice of witnesses, Esguerra's conduct did not constitute an "insist[ence] upon pursuing an objective that the lawyer considers . . . imprudent" for purposes of Professional Conduct Rule 1.16(b)(3). Accordingly, the defense attorney's disagreement with Esguerra on this matter did not give the attorney a ground for seeking withdrawal from the representation under Rule 1.16(b)(3).
Did Judge Cutler violate AS 12.47.100(b) when she did not accede to the defense attorney's mid-trial request to have Esguerra examined by a psychiatrist to determine his competency to stand trial?
A defendant may not be tried if, because of mental disease or defect, the defendant is unable to understand the proceedings or assist in their defense. In the middle of Esguerra's trial, his attorney suggested that Esguerra suffered from a mental disease or defect that rendered him incompetent to stand trial; the defense attorney asked Judge Cutler to order a psychiatric examination under AS 12.47.100(b). Judge Cutler declined to order the examination, and the trial proceeded.
AS 12.47.100(a).
On appeal, Esguerra argues that Judge Cutler had no authority to deny the defense attorney's request. Esguerra's argument is based on the following italicized portion of AS 12.47.100(b):
If, before imposition of sentence, . . . the attorney for the defendant has reasonable cause to believe that the defendant is presently suffering from a mental disease or defect that causes the defendant to be unable to understand the proceedings or to assist in the person's own defense, the attorney may file a motion for a judicial determination of the competency of the defendant. Upon that motion, . . . the court shall have the defendant examined by at least one qualified psychiatrist or psychologist. . . .
Esguerra contends that because AS 12.47.100(b) uses the phrase "the court shall have the defendant examined", a trial judge has no discretion to refuse a defense attorney's request for a competency examination.
The majority opinion correctly points out that, if we adopted Esguerra's interpretation of the statute, defense attorneys would have a potent tactical weapon for forcing continuances and mistrials in proceedings that are going badly for their clients. On the other hand, if there is indeed reason to believe that the defendant is incompetent to stand trial, a trial judge surely is not justified in choosing to ignore the problem until the trial is over, waiting to see what happens, simply because it is easier to allow the trial to go forward.
I believe that AS 12.47.100(b) gives a trial judge limited discretion to deny a defense attorney's request for a competency examination. The trial judge can deny the request if the judge concludes, after hearing the defense attorney's offer of proof, that there is no reason to question the defendant's competency.
The statute declares that the defense attorney can seek a competency examination if, at any time before sentencing, the defense attorney "has reasonable cause to believe that the defendant is presently suffering from a mental disease or defect that [renders] the defendant [incompetent to stand trial]." The statute then declares that, "[u]pon that motion, . . . the court shall have the defendant examined". I interpret this language to mean that a trial judge must order the examination if the judge finds that the motion is well-founded — i.e., that there is, in fact, reason to doubt the defendant's competency to stand trial.
I do not read the statute to say that a trial judge is bound by the defense attorney's evaluation of the defendant's competency. On the other hand, I do not believe that the statute gives a trial judge the authority to reject a defense attorney's request for a psychiatric examination simply because the judge personally concludes (without the assistance of a professional evaluation) that, if the issue of competency were litigated, the defendant would be found competent to stand trial. Rather, the question is whether there is good reason to doubt the defendant's competency.
In his brief to this Court, Esguerra notes that he repeatedly demonstrated a lack of self-control at his trial: he spoke out of turn and blurted out comments when his children, B.E. and Z.E., were on the witness stand; he engaged in an argument with his mother in the courtroom; and he argued with his attorney. But Judge Cutler concluded that, notwithstanding Esguerra's demonstrations of emotion, his interruptions, and his other intemperate behavior, there was no reason to doubt his competency to stand trial — his ability to understand the proceedings and to assist in his own defense.
After independently reviewing the record, I conclude that Judge Cutler was correct: the record does not disclose any reason to doubt Esguerra's competency. I therefore conclude that Judge Cutler did not abuse her discretion when she declined to order a psychiatric examination. Accordingly, I join my colleagues in rejecting this claim of error.