Dolchok v. State
| Decision Date | 22 January 1982 |
| Docket Number | 4596,Nos. 3920,s. 3920 |
| Citation | 639 P.2d 277 |
| Parties | Andrew DOLCHOK, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Phillip Paul Weidner, Drathman & Weidner, Anchorage, for appellant.
W. H. Hawley, Jr., Asst. Atty. Gen., Anchorage, and Wilson L. Condon, Atty. Gen., Juneau, for appellee.
Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and SCHULZ, Superior Court Judge. *
This case involves consolidated appeals from different but related proceedings. The first is an appeal from a post-conviction proceeding, and the second is an appeal from the partial new trial ordered at the conclusion of the post-conviction proceeding. We affirm.
On July 8, 1971, Andrew Dolchok robbed and killed an Anchorage cab driver. Dolchok was indicted for first degree murder. Judge Moody presided over Dolchok's trial. Dolchok's attorney for this trial was R. Collin Middleton.
Dolchok's defense was insanity under AS 12.45.083. Both the prosecutor and Dolchok's defense attorney thought that he should be found not guilty because of insanity ("NGI"). They mutually arrived at an understanding as to how the case should be tried. 1 The defense attorney, to ease the prosecution's case, would not raise suppression issues with respect to Dolchok's confession, effectively stipulating to the facts of the offense. The prosecutor agreed not to argue for a guilty verdict rather than an NGI. They both agreed that the matter should be tried before a judge, not a jury.
An off-the-record in-chambers conference was held between defense counsel, the prosecutor, and Judge Moody to arrange the court trial. 2 Dolchok was not present. Judge Moody agreed to try the case without a jury. 3
Prior to trial Judge Moody held a competency hearing at which Dr. Langdon, a psychiatrist, testified that Dolchok understood the nature of the charges against him and could assist his attorney in his defense "if he wanted to." Dr. Langdon also testified to his belief that Dolchok's trial attorney could tell if Dolchok was "voluntarily not cooperating with him or delusionally not cooperating with him." On the basis of that testimony and a written report by a second psychiatrist, Dr. Rader, Judge Moody found Dolchok competent to stand trial.
Immediately following the competency hearing, in a discussion concerning scheduling for the trial, Judge Moody questioned both Dolchok and the trial attorney regarding Dolchok's planned waiver of a jury. 4 Two days later Judge Moody again questioned Dolchok regarding his stated desire to waive trial by jury. 5 At the conclusion of this further inquiry the superior court accepted Dolchok's waiver of trial by jury.
At the trial the state called only one witness, Sergeant Church, the trooper who had arrested Dolchok and had taken Dolchok's confession. 6 Dolchok's confession was introduced without objection by Dolchok, in order to establish that Dolchok had killed the cab driver. The parties then proceeded to the "sanity" phase of the trial.
At the conclusion of the state's direct examination of Church, Dolchok's attorney requested a continuance so that the psychiatrists could have time to examine police reports which had not been made available to them previously, and because defense counsel was uneasy about Dolchok's "continuing competence to stand trial." He therefore requested that Dolchok be re-examined in late August before trial was to resume. The continuance was granted and the further psychiatric examination was ordered and performed. Trial then resumed and at the outset Dr. Langdon testified that he still thought Dolchok was competent. Dolchok's attorney concurred in that evaluation.
The defense called two psychiatric witnesses, Drs. Langdon and Burke. Dr. Langdon testified that Dolchok was insane at the time that he killed the cab driver, more particularly, that while he was able to appreciate the wrongfulness of his act, he could not conform his conduct to the requirements of the law. Dr. Burke testified that Dolchok was suffering from a major mental illness, chronic and long-standing.
Judge Moody found Dolchok guilty of first degree murder. After weighing the psychiatric testimony in conjunction with the lengthy narrative in Dolchok's confession of his activities before and after the murder, Judge Moody concluded that Dolchok had been able to appreciate the wrongfulness of his act and had been able to conform his conduct to the requirements of law. 7 Dolchok was sentenced to life imprisonment. This court affirmed the conviction in Dolchok v. State, 519 P.2d 457 (Alaska 1974), implicitly holding that Judge Moody was not barred by the uniform psychiatric testimony and that the ancillary factual matters in Dolchok's confession provided a sufficient evidentiary basis for Judge Moody's conclusion that Dolchok was sane. 8
After his conviction and imprisonment, Dolchok filed a pro se "motion to vacate judgment" in this court, which we referred to the superior court as a motion for post-conviction relief under Criminal Rule 35(c). 9 This was assigned to Judge James K. Singleton, who conducted the PCR hearing. 10 Dolchok, represented by a new attorney, raised issues involving the in-chambers conference at which the prosecutor and Dolchok's trial attorney revealed to Judge Moody their intention to try the case without a jury; Dolchok's competence at the time of his trial to waive his right to a jury as well as his rights to testify and to cross-examine witnesses; the voluntariness of Dolchok's confession; Dolchok's waivers of his Miranda rights; and alleged ineffective assistance of counsel.
Judge Singleton denied relief on all but one issue. He found that because of Dolchok's defense attorney's misapprehension of the effect of the uniform psychiatric evidence, 11 Dolchok missed an opportunity to challenge the truth of some of the "peripheral" statements in Dolchok's confession upon which Judge Moody had relied in making his determination concerning Dolchok's sanity. Judge Singleton therefore ordered a "partial reopening of the evidence" before Judge Moody to determine the truth of those disputed statements in Dolchok's confession. If, and only if, Judge Moody were to find one or more of those statements to be false, Judge Moody was to consider the effect of their falsity upon his ruling regarding Dolchok's sanity.
The partial new trial was assigned to Judge Moody, who had presided over the original trial. Dolchok preliminarily attempted to challenge Judge Moody both peremptorily and for cause, unsuccessfully on both.
At the partial new trial, Dolchok took the position that the state continued to be bound by the agreement made between the original prosecutor and the original defense attorney, so that the state could not contest a verdict of NGI. Judge Moody rejected this argument, apparently assuming that Judge Singleton had already ruled against it. Based on the contention that the state could not renege on its original agreement, Dolchok refused to take the stand unless the state would agree not to cross-examine him as part of its general commitment not to contest an NGI verdict. Dolchok's new attorney asked Judge Moody either to take judicial notice of the post-conviction relief proceedings or to allow him to present independent evidence of the original prosecutor-defense agreement in support of his position. Judge Moody refused.
The partial new trial was heard at various times from June, 1978, to December, 1978, during which Judge Moody heard the testimony of over twenty-five witnesses. At the conclusion of the partial new trial, Judge Moody entered findings of fact and conclusions of law. He found, in part, that a sufficient number of the factual statements in Dolchok's confession had been independently corroborated to justify his conclusion that all essential elements of the confession were trustworthy. He noted that Dolchok "offered no direct evidence which placed any of the factual statements of the confession in question." Judge Moody concluded that "(n)o evidence adduced has affected this court's original finding that Andrew Dolchok was sane at the time of the commission of the offense."
Dolchok has appealed from Judge Singleton's order denying relief on all issues except the truthfulness of certain statements in his confession. He has also appealed from the result of the partial new trial before Judge Moody. Those appeals have been consolidated.
In the proceeding for post-conviction relief, Dolchok had the burden of establishing by a preponderance of the evidence those facts which would entitle him to relief. See Hensel v. State, 604 P.2d 222 (Alaska 1979). Our review of the trial judge's factual findings is limited to determining whether they are clearly erroneous. Merrill v. State, 457 P.2d 231, 233-34 (Alaska 1969).
Dolchok has raised several issues in his appeal from Judge Singleton's order on the post-conviction relief proceedings. He argues first that Judge Singleton incorrectly decided that Dolchok's absence from the in-chambers conference with Judge Moody in violation of the Alaskan Criminal Rules was harmless error; Dolchok insists that his absence violated his rights to jury trial, to confrontation and cross-examination, to call witnesses, to testify on his own behalf, and to counsel, and the privilege against self-incrimination. Second, Dolchok argues that his waiver of jury trial was invalid, on several grounds: that he was without sufficient knowledge of the mechanism of jury trials to make a knowing waiver; that the waiver was induced by a false guarantee of an NGI in return for the waiver; and that he was mentally incompetent to make such a waiver at all. Third, he argues that it was improper for Judge Singleton to make a retroactive determination of Dolchok's competence to waive his right to jury trial, his right to counse...
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