Hinshaw v. State, A-13671

CourtCourt of Appeals of Alaska
Writing for the CourtALLARD, JUDGE
Docket NumberA-13671
Decision Date05 August 2022



No. A-13671

Court of Appeals of Alaska

August 5, 2022

Appeal from the Superior Court, Third Judicial District, Anchorage, Philip R. Volland, Judge. Trial Court No. 3AN-04-00166 CR

Megan R. Webb, Assistant Public Defender, and Samantha Cherot, Public Defender, Anchorage, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.

Before: Allard, Chief Judge, and Harbison and Terrell, Judges.



The federal and state constitutions grant criminal defendants the right to represent themselves in their criminal trials, no matter how ill-advised such a choice may


seem.[1] This constitutional right exists "to affirm the dignity and autonomy of the accused."[2] An erroneous denial of this right is structural error, requiring reversal of a defendant's conviction regardless of prejudice.[3]

In order to invoke their right to self-representation, a defendant must "clearly and unequivocally" declare a desire to proceed without counsel.[4] In response to such a declaration, a trial court must hold a hearing to ensure that the defendant's waiver of counsel is knowing and intelligent - i.e., that the defendant "understands precisely what [they are] giving up by declining the assistance of counsel."[5] At the hearing, the trial court must explain in some detail the advantages of proceeding without counsel and the disadvantages of self-representation.[6] If the defendant nevertheless persists in their desire to proceed pro se, the trial court must grant the defendant that right, provided that the defendant is "capable of presenting [their case] in a rational and


coherent manner" and that the defendant is "willing to conduct [themselves] with at least a modicum of courtroom decorum."[7]

In the current case, it is undisputed that Steven Michael Hinshaw "clearly and unequivocally" invoked his right to self-representation. It is also undisputed that Hinshaw was competent to proceed pro se and that he was capable of presenting his case in a rational and coherent manner without being disruptive. The trial court nevertheless denied Hinshaw's request to represent himself based on the trial court's concern that Hinshaw did not "appear to appreciate the significance of the tasks and issues he faces at trial." For the reasons explained in this opinion, we conclude that this was error requiring reversal of Hinshaw's convictions.

Factual and procedural background

In 2004, a grand jury indicted Hinshaw for first-degree murder and other related felony charges for shooting into a passing car and killing the driver.[8]

Initially, the Public Defender Agency was appointed to represent Hinshaw. However, the Public Defender Agency was later allowed to withdraw based on a conflict, and the Office of Public Advocacy was appointed as Hinshaw's counsel. Hinshaw was subsequently represented by a series of different attorneys who kept replacing each other for various reasons. In November 2005, almost two years after the charges were initiated, another assistant public advocate entered his appearance in the case.


Hinshaw became very dissatisfied with this attorney's representation, and while his criminal case was still ongoing, he filed a civil lawsuit alleging legal malpractice by the defense attorney. The civil lawsuit was later dismissed on procedural grounds.[9]

The trial court held a series of representation hearings to address Hinshaw's request for a different attorney. Ultimately, the trial court did not find good cause to remove the defense attorney.

On May 23, 2006, Hinshaw filed a motion to proceed pro se. In an accompanying affidavit to the motion, Hinshaw asserted that he had "no working relationship" with his attorney and that there were a "multitude of differences" between them. According to Hinshaw, the defense attorney had refused "to consider matters that are important to [his] case." Hinshaw concluded, "I cannot and will not, under the circumstances go to trial with my life at stake with [the defense attorney], I am forced to proceed pro se."

As required by law, the trial court held a hearing on Hinshaw's motion to proceed pro se.[10] Because this appeal turns on what happened at this hearing, we will describe the hearing in detail.


The representation hearing

At the beginning of the hearing, the trial court clarified with Hinshaw that Hinshaw was seeking to represent himself regardless of whether his attorney was dismissed as counsel. Hinshaw replied, "Regardless." The court then explained in detail the advantages of having counsel and the disadvantages of proceeding pro se.

First, the trial court described counsel's pretrial responsibilities, which include formulating a case strategy, filing motions, and negotiating for a pretrial disposition. The court stressed that counsel had specialized training in these areas. Hinshaw affirmed that he understood these pretrial responsibilities and that his attorney had experience handling these matters.

The trial court then detailed an attorney's function at trial, including jury selection, offering and objecting to evidence, cross-examining witnesses, suggesting jury instructions, making opening and closing statements, and filing appropriate motions. Hinshaw acknowledged that his attorney had been specifically trained for these responsibilities and that he would lose the benefit of his attorney's experience and training if he proceeded pro se.

In response to the trial court's questions about Hinshaw's knowledge of the Alaska Rules of Evidence, Hinshaw stated that he had "researched" the rules of evidence that pertained to his case. Hinshaw was able to name five rules of evidence that applied to his case and recognized that he needed to learn more. Hinshaw conceded that he did not know all of the exceptions to the hearsay rule.

Hinshaw acknowledged that cross-examination was a very specific "talent and art" and that there were "tricks to the trade" that he did not know. Hinshaw also acknowledged that he had never cross-examined a witness before.

Hinshaw acknowledged that he had never prepared jury instructions or made arguments to a jury, that his attorney was trained to do so, and that he would not


have the benefit of that training and experience if he proceeded pro se. Hinshaw said that he intended to learn as he went along and was "continuing to educate [him]self."

The court then repeated these same warnings:

The Court: Do you understand that there are particular rules and procedures during the trial, not just ones that apply to pretrial practice and evidence, but actually to how a trial is conducted?
Mr. Hinshaw: Yes. I. . .
The Court: Do you understand that your lawyer knows about them and you don't?
Mr. Hinshaw: I understand that. And I understand that a lot of that stuff comes with experience, I do.
The Court: Do you understand that he knows and is well versed in the law and the legal implications of the law under which you've been charged?
Mr. Hinshaw: Yes, I understand that.

Hinshaw understood that his attorney had "been an attorney for some time," had obtained a degree, and "had to pass the Alaska bar," which gave "him the information that he needs." He also acknowledged that if he went to trial without an attorney, he would be going against a prosecutor who was far more skilled than he was.

The trial court then turned to the disadvantages of self-representation and asked Hinshaw if he understood that he might do a poor job representing himself because of his lack of experience. Hinshaw indicated that he understood. Hinshaw also recognized that, because of his lack of legal training, he might fail to make appropriate objections. He showed awareness of the fact that he would not be able to raise an objection on appeal if it was not raised in the trial court.

The trial court then asked Hinshaw whether he understood that he might make the wrong tactical decisions during trial because of his lack of training and


experience. Hinshaw responded that he would take his time and that "[i]f I don't understand how to proceed or where to go next, I need to research." Hinshaw also conceded that the trial court would be unable to help him and said that the court was "like a coach on a basketball game" who remained "on the sideline" and was supposed to be "fair, impartial, and unbiased."

The trial court again emphasized the likelihood that Hinshaw would make errors if he proceeded pro se:

The Court: Do you understand that because of the things I just mentioned might happen, you might screw up argument, you might screw up jury selection, you might screw up the case because you make the wrong decision, you might fail to object to the evidence, that - that it's likely to mean it is more likely than not that you will be convicted at trial?
Mr. Hinshaw: I understand what you're saying, and I understand what I'm - what I'm facing, yes.
The Court: I want you to understand the consequences. If you proceed on your own, it is more likely than not, you will be convicted.
Mr. Hinshaw: I'm familiar with the saying.

The court then repeated its opinion that Hinshaw was "more likely than not" going to be convicted of murder if he proceeded without a lawyer, and he asked Hinshaw if he understood. Hinshaw stated, "No, I don't understand that," disagreeing with the court's opinion of his chances at trial.

Following this exchange, the court began asking Hinshaw about his education and experience with the criminal justice system. Hinshaw stated that he had a G.E.D. and attended high school with a 4.0 grade point average. Hinshaw admitted that this would be the first case in which he went to trial. He also acknowledged that the



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