McKinnon v. State

• Decision Date: 30 August 1974
• Docket Number: Nos. 2227,2228,s. 2227
• Citation: 526 P.2d 18
• Parties: Timothy Mark McKINNON, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 18

526 P.2d 18

Timothy Mark McKINNON, Appellant, v. STATE of Alaska, Appellee.

Nos. 2227, 2228.

Supreme Court of Alaska.

Aug. 30, 1974.

Phillip P. Weidner, Asst. Public Defender, Herbert D. Soll, Public Defender, Anchorage, for appellant.

Stephen G. Dunning, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, Norman Gorsuch, Atty. Gen., Juneau, for appellee.

Robert H. Wagstaff, Wagstaff, Rubinstein & Middleton, Anchorage, for the American Civil Liberties Union as amicus curiae, on behalf of appellant.

OPINION

Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.

BOOCHEVER, Justice.

McKinnon appeals from his conviction for sale of narcotics, AS 17.10.010. He specifies a multitude of errors on appeal, four of which bear discussion.

On the night of September 10, 1973, Richard Howe, an Anchorage police officer acting as an undercover narcotics detective arranged with McKinnon's co-defendant, Kennech Knight, to purchase an ounce of cocaine the following day. When Officer Howe met with Knight the next afternoon in front of Chilkoot Charlie's Bar in Anchorage, McKinnon was also present. Howe testified that the three of them went to an apartment nearby, where the sale was consummated.

McKinnon was later arrested and indicted. The case was assigned to Judge Occhipinti. Since McKinnon was on parole at the time of his arrest, a probation revocation hearing was scheduled before Judge Moody, but was deferred pending the outcome of the criminal prosecution. Both Judge Moody and Judge Occhipinti were peremptorily challenged, at which time Judge Occhipinti, acting as presiding judge, reassigned the probation revocation hearing to himself, and transferred the criminal prosecution to Judge Moody.

In early December 1973, the Public Defender Agency learned that one of its clients, Bernard Lono, was an informer for the police. The state does not dispute that Lono was an informer. Mr. Weidner, the Assistant Public Defender assigned to represent McKinnon, initiated an investigation in order to determine whether Lono had overheard communications between himself and McKinnon, or whether Lono had inspected the McKinnon file. However, Mr. Weidner was unable to locate Lono because he had been sequestered by the police.

On Friday afternoon, January 4, 1974, Mr. Weidner, according to his account, became aware of certain unspecified facts which led him to believe that Lono had in fact become privy to confidential information pertaining to McKinnon's case. ¹ On Wednesday, January 9-the day of trial-Mr. Weidner moved for an evidentiary hearing to determine whether Lono had unconstitutionally invaded the attorneyclient relationship between McKinnon and himself. The District Attorney opposed the motion, charging that the Public Defender Agency had known the material facts upon which the motion was based as long as a month before trial. The trial judge accepted the District Attorney's unsubstantiated version of the facts. Regarding the situation as merely another instance of the inexcusable lack of preparation which he felt pervaded the Public Defender Agency, the trial judge then removed Mr. Weidner as McKinnon's counsel, over the defendant's explicit protest. Another lawyer, Mr. Clouse, was immediately appointed.

McKinnon's trial finally commenced on March 4, after the newly-appointed attorney had been given time to familiarize himself with the case. On March 6, McKinnon entered a plea of nolo contendere. The defendant's motion to withdraw this plea was denied on April 5. McKinnon's parole was revoked on April 25.

I

We think it clear beyond argument that first by dismissing Mr. Weidner as McKinnon's attorney, and then by appointing unwanted counsel to represent McKinnon over Mckinnon's express protest, the trial court deprived the defendant of his fundamental right under the sixth amendment to the United States Constitution and art. I, § 11 of the Alaska Constitution ² to counsel of his choice.

The United States Supreme Court has on numerous occasions re-affirmed the principle that a criminal defendant's choice of counsel must be honored. ³ And the lower Federal courts have repeatedly held that the removal of retained counsel and the appointment of unwanted counsel over a defendant's objection constitutes a violation of the sixth amendment right to counsel. For example, in Releford v. United States ⁴ the defendant's retained attorney, Wendell Kay, became ill, and the trial judge appointed an attorney with whom Mr. Kay shared office space to represent Releford-despite Releford's insistence on representation by Mr. Kay, or, in the alternative, by an attorney other than the one appointed. The United States Court of Appeals for the Ninth Circuit reversed the conviction, holding that, 'contrary to the Sixth Amendment, appellant was deprived of the assistance of counsel of his own choice'. ⁵ The courts of appeals for the Seventh Circuit ⁶ and the District of Columbia ⁷ have also concluded that the removal of a retained attorney and the imposition of unwelcome counsel upon an unwilling defendant represents an unwarranted intrustion upon basic sixth amendment rights. ⁸ In fact, we need not look beyond our own decisions. In Klockenbrink v. State, ⁹ we wrote:

(T)he accused cannot be forced to be heard at trial through counsel other than the one employed by him or appointed by the court, as the case may be, to represent him, no matter how competent, experienced and conversant with the case other counsel may be and regardless of the fact that in retrospect the other counsel afforded him a genuine and effective representation. ¹⁰

We recognized that these decisions concerned the dismissal of privately retained counsel and that an indigent defendant is not entitled to representation by any particular attorney. But as we stated in Klockenbrink:

(T)here is no valid distinction between appointed counsel and privately employed counsel in determining the adequacy of representation of an accused . . . (o)nce counsel has been chosen, whether by the court or the accused, the accused is entitled to the assistance of that counsel at trial. ¹¹

We find ourselves in complete agreement with the California Supreme Court's observation that:

(O)nce counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the provery of the accused. ¹²

Preservation of the right to proceed with one's chosen counsel is not mere constitutional formalism. The attorney-client relationship involves 'an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney.' ¹³ Often, the outcome of a criminal trial may hinge upon the extent to which the defendant is able to communicate to his attorney the most intimate and embarrassing details of his personal life. Complete candor in attorney-client consultations may disclose defenses or mitigating circumstances that defense counsel would not otherwise have uncovered. At the very least, an open exchange between attorney and client will often foreclose the possibility of surprise at trial.

Once counsel has been appointed, and the defendant has reposed his trust and confidence in the attorney assigned to represent him, the trial judge may not, consistent with the United States and Alaska constitutions, rend that relationship by dismissing the originally appointed attorney and then thrusting unfamiliar and unwelcome counsel upon the defendant. The attorney-client relationship, once established, is inviolate, and may not be severed or otherwise intruded upon. ¹⁴

We further note that the dismissal of counsel by the trial court after preparation of the defendant's case has already begun will frequently render the assistance of subsequently appointed counsel constitutionally defective. The defendant, wrongfully deprived of the attorney in whom he had confided, may find himself unable to cooperate fully with the lawyer forced upon him against his will, resulting in inadequate trial preparation by that attorney. The record in this case amply demonstrates that risk.

We are also aware that the threat of summary dismissal for provoking the trial judge's displeasure could intimidate the trial bar and discourage tenacious trial representation. ¹⁵ Such a grave dilution of the constitutional right to counsel cannot be tolerated. As the California Supreme Court stated, in ordering the reinstatement of an attorney who had been removed for 'incompetence' after repeatedly infuriating the trial judge with his abrasive courtroom manner:

The outright removal of counsel on the ground of his alleged 'incompetency,' however, is even more of a threat to the independence of the bar than is arbitrary misuse of the contempt power. As Mr. Kanarek, writing for defendant Smith, persuasively argues, 'if the advocate must labor under the threat that, at any moment, if his argument or advocacy should incur the displeasure or lack of immediate comprehension by the trial judge, he may be summarily relieved as counsel on a subjective charge of incompetency by the very trial judge he is attempting to convince, his advocacy must of necessity be most guarded and lose much of its force and effect.' The inhibition imposed on a defense attorney by such a threat constitutes a serious and unwarranted impairment of his client's right to counsel. ¹⁶

We need not, and therefore do not, decide whether Mr. Weidner's motion for an evidentiary hearing was the product of inadequate trial preparation which unjustifiably delayed trial. It suffices to say that even if the motion could be so characterized, the trial court did not have the authority to deprive the defendant of the services of...