WHITE v. STATE, A-9044 (Alaska App. 4-11-2007)

DAVID A. WHITE, a/k/a CORWIN, Appellant, v. STATE OF ALASKA, Appellee.

Court of Appeals No. A-9044.Court of Appeals of Alaska.
April 11, 2007.

Appeal from the Superior Court, First Judicial District, Juneau, Patricia Collins, Judge., Trial Court No. 1JU-04-873 CR.

Rachel Levitt, Assistant Public Advocate, Palmer, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.

Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.

Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.

COATS, Chief Judge.

David Allen White, also known as Corwin, was convicted of assault in the third degree and three counts of reckless endangerment following a bench trial. On appeal, Corwin argues that the record is insufficient to show that he waived his right to a jury trial. But we conclude that the record reflects that Corwin knowingly and voluntarily waived this right. Additionally, Corwin argues that we must remand his case for resentencingPage 2
before a different judge. He alleges that Superior Court Judge Patricia A. Collins improperly ordered him to submit to a psychological examination before sentencing him. He argues that Judge Collins should have recused herself from the sentencing. But we conclude that the record shows that Judge Collins did not rely on any information from the psychological examination in imposing sentence. We accordingly affirm Corwin’s conviction and sentence.

Factual and procedural background

During the afternoon of July 2, 2004, on the University of Alaska Southeast campus in Juneau, Michael Pando spotted Corwin walking toward him along Back Loop Road. (White has apparently legally changed his name to Corwin. According to Corwin, this name serves as both a first and last name.) One week prior, Corwin and Pando had an altercation at a cabin in the woods near campus. As the two approached each other on July 2, Pando asked Corwin if he was ready to fight again and continued toward him. Corwin pulled a snub-nosed .38 revolver from behind his back and aimed it at Pando. Corwin then “spread his legs and calmly took aim and started shooting” at Pando.

Pando began to run when he heard a bullet pass near his head. He ran to the other side of Back Loop Road and heard bullets continue to fly past him. Corwin continued to fire as Angela Murphy, accompanied by her two young daughters, unsuspectingly drove along Back Loop Road toward the scene. As Murphy drove between Corwin and Pando, she realized that she was driving through the line of fire. Murphy estimated that when she passed between the two men, she was within fifteen feet of Corwin and heard several shots during that time. Murphy and her children passed through safely. Pando, meanwhile, continued to flee into the woods. He reached safety behind some homes and eventually returned to university student housing.

Both Pando and Murphy reported the incident to police. Pando told police that Corwin was the shooter and took them to the place from where Corwin was shooting.Page 3
The police located one spent .38-caliber bullet casing. The next day, Juneau police located and arrested Corwin. The police found a .38-caliber snub-nosed revolver tucked in Corwin’s waistband.

A grand jury indicted Corwin on five counts. Count I charged second-degree misconduct involving a weapon[fn1] for knowingly firing the revolver in the direction of a building with reckless disregard for physical injury to a person. Count II charged assault in the third degree[fn2] for placing Pando in fear of imminent physical injury by means of a dangerous instrument. Counts III, IV, and V charged reckless endangerment[fn3] for engaging in conduct that created a substantial risk of serious physical injury to Murphy and her two children.

Superior Court Judge Patricia A. Collins presided over Corwin’s pretrial proceedings. At arraignment, Corwin stated that he would like to represent himself. Corwin informed the judge that he had a law degree from the University of Tulsa and that he understood his right to counsel. Judge Collins stated that she was troubled because she thought she remembered Corwin from an earlier legal proceeding where Corwin claimed mental incompetence to enter into a contract. Because of these concerns, Judge Collins appointed the Office of Public Advocacy to represent Corwin. At the close of this hearing, Judge Collins informed Corwin that he had a right to either a judge or jury trial and that the choice was his. Corwin stated that he understood that right.

One week later, the arraignment was continued and Judge Collins informed the parties that, a few years prior, Corwin had appeared before Judge Collins in a civil debt collection matter where he claimed that he was not competent to enter into the contract because of a diagnosis of paranoid schizophrenia. Corwin, through his attorney,Page 4
continued to assert that he wanted to represent himself in his current criminal trial. Judge Collins refused to allow Corwin to proceed without counsel until she was reassured regarding his competency. Corwin’s attorney agreed to the appointment and asserted that he would research how Corwin could show his competency to proceed pro se. Corwin’s attorney then entered a plea of not guilty and asked for a jury trial. Corwin interrupted his attorney and stated his desire for a bench trial. Judge Collins did not enter a waiver of jury trial; she stated the parties could further discuss that issue once the competency and representation issues were resolved. Judge Collins set a trial date that was three months away, which caused Corwin to protest because he remained in jail and wanted an immediate bench trial. In response, the court scheduled the pretrial hearing date and tentative trial date a few weeks earlier than initially scheduled.

Three weeks later, the court held a pretrial hearing where Corwin reiterated his desires to represent himself and to receive an earlier trial date. Judge Collins expressed surprise that neither party was raising incompetency, insanity, or diminished capacity as potential trial issues. Corwin’s attorney stated that after interacting with Corwin, he had no reason to question Corwin’s competency to stand trial. Corwin’s counsel filed a separate motion requesting permission to withdraw and allow Corwin to proceed pro se. Corwin’s attorney also noted that Corwin continued to express his desire to waive a jury. Judge Collins withheld a ruling on the jury trial issue until the representation issue was resolved.

Following this hearing, Corwin’s attorney submitted a pro se pleading from Corwin making several motions. The pleading was submitted to explain why counsel moved to withdraw — because Corwin was adamant that he should be able to direct and control his own defense. Among other legal matters, Corwin’s pleading contained a “notice of trial by bench.” Corwin wrote, “[I am] unable to make bail, and [I am] in custody; and the current trial date two months away was set for a jury trial when [I have] made it clear a bench trial is demanded. Therefore [my] notice of trial by bench. [I give]Page 5
written notice of [my] bench trial demand, and [I am] notifying the Court a three day time slot is not necessary for this case . . . .”

One week before trial, Judge Collins held a final pretrial hearing. Corwin withdrew his motion to represent himself in order to decrease the chances of further delay. Corwin reasserted his “bench trial demand.” Judge Collins mistakenly stated that Corwin’s attorney would decide if Corwin would have a bench or jury trial. Corwin’s attorney correctly replied that the ultimate decision belonged to Corwin and informed the court that Corwin was unyielding in his demand for a bench trial. The prosecutor requested that Judge Collins clarify this waiver with Corwin personally. Judge Collins addressed Corwin to explain the differences between a jury and bench trial and confirmed that the decision rested with Corwin. Judge Collins asked, “Do you understand that, sir?” to which Corwin responded, “Yes.” Judge Collins then restated her rationale in appointing counsel, and Corwin agree to proceed to trial with counsel. Judge Collins expressed her continuing concerns regarding Corwin’s competency to stand trial. But both parties reassured her that neither of them had any cause to suspect Corwin did not meet the minimal burden of competency to stand trial.

Before trial began, Judge Collins reviewed Corwin’s history of past civil and criminal cases before the court. She addressed Corwin at the beginning of trial to ensure that he was competent to proceed and assist in his defense. Judge Collins discussed the judicial process with Corwin to ensure he understood the proceedings. Judge Collins asked Corwin if he continued to experience mental health problems and if he was under the care of a psychiatrist. Corwin’s attorney objected on the basis that this type of information could later be used against Corwin. Judge Collins, without pressing that matter further, ruled that Corwin was competent to begin trial.

A three-day bench trial followed. At the close of evidence, Judge Collins found Corwin guilty of one count of third-degree assault (Count II) and three counts of reckless endangerment (Counts III, IV, and V). She found Corwin not guilty of thePage 6
second-degree weapons misconduct charge (Count I). After announcing the verdict, Judge Collins ordered that Corwin undergo a psychiatric evaluation before sentencing. She relied on AS 12.47.060 to issue this sua sponte order because she believed an appropriate sentence could only be reached after considering the possibility that Corwin was guilty but mentally ill. Corwin’s attorney objected to the evaluation as a violation of Corwin’s right to remain silent. Judge Collins noted that Corwin could attend the examination and sit silent, but it would aid in achieving an effective sentence if he would cooperate with the evaluation.

Corwin later requested to dismiss his attorney because he did not trust the attorney, which resulted in Judge Collins modifying the order for a psychological examination to include an analysis of Corwin’s competency to proceed pro se.

Dr. David Sperbeck attempted to perform the psychological evaluation of Corwin. However, Corwin refused to participate. Dr. Sperbeck’s resulting report contained speculation that Corwin’s refusal to participate was not an indication of mental health defects but the result of a stubborn protest to his legal circumstances. The report reviewed Corwin’s lack of mental health issues while under the Department of Corrections’ supervision. Dr. Sperbeck concluded that he was unable to formulate a diagnosis or recommend treatment options. Dr. Sperbeck closed with the assertion that “given the fact that the defendant has fired a weapon in the direction of strangers, he must be considered extremely dangerous and capable of further violent acting out.”

Corwin moved to have the report excluded from sentencing, based on his right against self-incrimination. Corwin also argued that a different judge, who had not seen the report, should conduct sentencing. The State stipulated that the report could be excluded, except as it pertained to Corwin’s competency to stand trial. However, the State opposed Corwin’s motion to recuse Judge Collins.Page 7

Judge Collins agreed to exclude all evidence of the psychiatric examination at sentencing except for the purposes of establishing competency. Judge Collins sentenced Corwin to a composite sentence of 2 years of imprisonment with 6 months suspended.

Why we conclude that the record demonstrates that Corwin waived hisright to a jury trial

Corwin argues that Judge Collins erred when she proceeded to a bench trial without seeking Corwin’s personal, formal, on-the-record waiver of his right to a jury trial. But the record shows that Judge Collins personally addressed Corwin and informed him of his right to a jury trial. And Corwin consistently and insistently demanded a bench trial. Under these circumstances, we conclude that Corwin waived his right to a jury trial.

The right to a trial by jury for criminal defendants is guaranteed by both the federal and Alaska constitutions.[fn4] Because the right to trial by jury is a fundamental right, waiver can not be presumed and the court must address the defendant personally.[fn5] Any waiver of the right to jury trial requires a clear record demonstrating a knowing and intelligent waiver.[fn6] This Court has stated that “the record must explicitly demonstrate that the defendant understood and personally relinquished the right to trial by jury.”[fn7]Page 8

Alaska Criminal Rule 23 codifies this rule and requires that the waiver be in writing.[fn8] However, Rule 23 has been leniently interpreted. A written waiver creates the most clear record that the defendant opted to waive the jury trial right, but a verbal waiver can be valid if the record is clear that the waiver was knowing and voluntary.[fn9] Furthermore, the waiver must be stated personally by the defendant; waiver by counsel is insufficient.[fn10] The court must address the defendant personally “to determine whether [the defendant] understood the right he was relinquishing or the consequences of his choice (that his guilt or innocence would now be determined solely by the judge).”[fn11] Waiver of the right to a jury trial will not be upheld unless “the record explicitly demonstrate[s] that the defendant understood and personally relinquished the right to trial by jury.”[fn12]

The record on the whole reflects that Corwin was well-educated — possibly having received a legal education — and was unwavering in his demand to receive a bench trial. Corwin made at least five statements on the record expressing his desire to proceed with a bench trial, including one where he put this demand in writing before the court. On two separate occasions, Judge Collins explained the jury process to Corwin and each time he stated that he understood this right. Corwin’s attorney made at least two references to his own advice to Corwin that he proceed with a jury trial, to which Corwin adamantly refused. The record, viewed as a whole, demonstrates that Corwin understood and personally chose to waive jury trial. The record also shows that Judge Collins addressed Corwin personally and explained the key differences between a jury and a bench trial.Page 9

Corwin asserts that, because the waiver was not in writing, his waiver was in violation of Alaska Criminal Rule 23(a). That rule states that a waiver of the right to a jury trial must be in writing, with the approval of the court and the consent of the State. But, we have previously held that the lack of a written waiver will not require reversal of an otherwise valid waiver of the right to a jury trial.[fn13] However, in this case, Corwin did actually place a written waiver of jury trial into the trial record. In a pretrial motion to withdraw as counsel, Corwin’s attorney submitted Corwin’s pro se written pleading. Among other demands, Corwin’s pleading contained a clear, explicit demand by Corwin that he desired a bench trial.

Corwin also alleges that Judge Collins should not have accepted his waiver of his right to a jury trial while simultaneously questioning his competency to represent himself or to stand trial. But, although Judge Collins carefully raised questions about Corwin’s competency, Corwin’s attorney — who had much more personal interaction with Corwin — was unwavering in his opinion that Corwin was competent to assist in his own defense. And Corwin has never argued that he was not competent to stand trial.

We conclude that the record shows that Corwin waived his right to a jury trial.

Why we uphold Judge Collins’ refusal to recuse herself fromsentencing

After Judge Collins found Corwin guilty, she expressed concern over his mental health. She ordered an examination under an Alaska statute which allows a court, on its own motion, to raise the issue of whether the defendant is guilty but mentally ill.[fn14]Page 10
Judge Collins ordered the psychiatric examination in furtherance of determining whether Corwin was guilty but mentally ill. Corwin’s attorney objected to the examination, citing Corwin’s right against self-incrimination. Judge Collins replied that she believed that Corwin had a constitutional right to remain silent, and that he could attend the examination and remain silent if he so chose. Corwin’s attorney responded that Corwin would attend the examination but would probably continue to exert his right to remain silent.

At the close of this discussion, Corwin spoke directly to Judge Collins and stated that he did not trust his attorney. Corwin’s attorney replied that Corwin was refusing to communicate with him. As a result, Judge Collins modified her order for a psychiatric exam to include a determination of Corwin’s competency to proceed without an attorney.

Dr. David Sperbeck of the Alaska Psychiatric Institute examined Corwin and submitted a report to the court. Dr. Sperbeck’s report indicated that he attempted to perform a psychological evaluation of Corwin, but Corwin refused to participate. Dr. Sperbeck did conclude, based only on Corwin’s medical records and Sperbeck’s discussions with the Department of Corrections’ mental health staff, that Corwin did not suffer from a mental disease or defect. The majority of Dr. Sperbeck’s three-page report reiterated that he was unable to properly diagnosis Corwin’s mental status because of Corwin’s refusal to cooperate. In the report, Dr. Sperbeck stated: “In any case, given the fact that the defendant has fired a weapon in the direction of strangers, he must be considered extremely dangerous and capable of further violent acting out.”

Corwin filed a motion to exclude the use of Dr. Sperbeck’s report at sentencing. Corwin simultaneously asked Judge Collins to recuse herself from sentencing so that his sentencing could be conducted by a judge who had not been exposed to Dr.Page 11
Sperbeck’s report. Judge Collins ruled that she would not consider Dr. Sperbeck’s report for any purpose other than to conclude that Corwin was mentally competent.

At sentencing, Judge Collins struck any portions of the presentence report which incorporated or referenced Dr. Sperbeck’s report. Both the State and Corwin specifically avoided any reliance on Dr. Sperbeck’s report in making sentencing recommendations. Judge Collins sentenced Corwin to a composite sentence of 2 years imprisonment with 6 months suspended. Judge Collins made no mention of Dr. Sperbeck’s report in her sentencing remarks.

Corwin argues that Judge Collins erred in failing to recuse herself. He attempts to find support by drawing an analogy to Perotti v.State.[fn15] In Perotti, this court considered another case where the defendant challenged the trial judge’s failure to recuse himself from sentencing after ordering a psychiatric examination.

Perotti was sixteen years old when he was charged with first-degree murder, kidnaping, first-degree robbery, tampering with physical evidence, and third-degree theft.[fn16] The State sought to have Perotti tried as an adult and petitioned for a waiver of juvenile jurisdiction.[fn17] Superior Court Judge Jay Hodges presided over the waiver proceedings and ordered, over defense objections, a psychological and psychiatric evaluation of Perotti.[fn18] The examiners submitted written reports and testified extensively at the waiver hearing.[fn19]
Judge Hodges concluded, based to a significant extent on the psychiatricPage 12
evaluations, that Perotti was not capable of rehabilitation by age twenty, and thus should be tried as an adult.[fn20]

Soon thereafter, this Court barred “court-compelled psychiatric evaluations in juvenile waiver cases as violative of the privilege against self-incrimination.”[fn21] The State and Perotti consequently entered into a plea agreement, whereby Perotti would plead to first-degree murder and forego any potential appeal of the juvenile waiver order, in exchange for the State dismissing the remainder of the charges.[fn22] The plea agreement was initially assigned to a different judge, but when that judge become unavailable at the last moment, Judge Hodges stepped in.[fn23] Judge Hodges accepted the plea and offered to recuse himself for sentencing.[fn24]

Perotti accepted the offer for a different sentencing judge, and Judge Hodges assigned a different judge for sentencing.[fn25] However, based on a motion by the State, Judge Hodges reconsidered the issue and reassigned the case back to himself.[fn26] Perotti challenged this decision, arguing that Judge Hodges was exposed to improper evidence (from the psychiatric evaluation) which created an appearance of partiality.[fn27] JudgePage 13
Hodges presided over the sentencing hearing and sentenced Perotti to the maximum sentence of 99 years.[fn28]

On appeal, this Court held that “[a] judge’s exposure to inadmissible evidence does not necessarily result in prejudice warranting recusal.”[fn29] But, despite the absence of actual bias, this Court held that the appearance of partiality, in light of objective facts, required reversal and recusal.[fn30] We relied on the fact that, after erroneously compelling Perotti to submit to psychological and psychiatric evaluations, Judge Hodges received comprehensive reports and heard extensive testimony based upon those reports. The evidence, which was undisputedly unfavorable to Perotti, went to the crucial question in juvenile waiver proceedings: Perotti’s potential for rehabilitation. Judge Hodges relied on this information to conclude that Perotti could not be rehabilitated within the time limits of the juvenile system and waived Perotti to adult status. We also noted that Judge Hodges had initially offered to recuse himself from the adult sentencing hearing.[fn31]

At the adult sentencing hearing, the key issue was Perotti’s prospects for rehabilitation. Despite Perotti’s youth, Judge Hodges sentenced him to the maximum 99-year sentence for his offense based on the conclusion that Perotti had poor prospects for rehabilitation. We noted that, although there was no indication that Judge Hodges considered any inadmissible evidence that had been erroneously presented during the juvenile waiver proceedings, Judge Hodge’s decision that Perotti had poor prospects for rehabilitation (a decision that was necessary to waive Perotti to adult status) was veryPage 14
similar to his findings in imposing a maximum sentence on Perotti.[fn32]
Judge Hodges was faced with comprehensive reports and testimony which dealt with a crucial question in the juvenile waiver proceeding, Perotti’s prospects for rehabilitation. Based on those reports, Judge Hodges had already ruled that Perotti had poor prospects for rehabilitation. At Perotti’s sentencing, the length of his sentence was going to be primarily determined by his prospects for rehabilitation. Judge Hodges relied on his conclusion that Perotti had poor prospects for rehabilitation in imposing a maximum sentence.

By contrast, in Corwin’s case, there is no indication that Judge Collins relied on the psychological report for any purpose other than to support the conclusion Corwin was competent to be sentenced and to represent himself at sentencing. The State conceded that the report should be excluded for all other purposes. Judge Collins stated that she would not rely on the report and struck all mention of it from the sentencing record. There is simply no indication that Judge Collins gave any consideration to the report on the question of the appropriate sentence. Even if we assume that Dr. Sperbeck’s report was inadmissible, it appears that this is not the kind of inadmissible evidence which would result in prejudice warranting recusal.[fn33] We accordingly conclude that Judge Collins did not abuse her discretion in declining to recuse herself from imposing Corwin’s sentence.


We conclude that the points which Corwin raises on appeal are not meritorious. We accordingly AFFIRM his convictions and sentence.

[fn1] AS 11.61.195(a)(3)(A), (B).

[fn2] AS 11.41.220(a)(1)(A).

[fn3] AS 11.41.250(a).

[fn4] U.S. Const. amend. VI; Alaska Const. art. I, § 11.

[fn5] Walker v. State, 578 P.2d 1388, 1389-90 (Alaska 1978) (citations omitted).

[fn6] Id. at 1390 (citations omitted); see also O’Donnell v.Anchorage, 642 P.2d 835, 836 (Alaska App. 1982) (requiring same standard for waiver in both felony and misdemeanor trials).

[fn7] McGlauflin v. State, 857 P.2d 366, 369 (Alaska App. 1993),abrogated on other grounds by State v. Coon, 974 P.2d 386 (Alaska 1999).

[fn8] Alaska R. Crim. P. 23(a).

[fn9] See Walker, 578 P.2d at 1390; McGlauflin, 857 P.2d at 368.

[fn10] Walker, 578 P.2d at 1390 (footnote and citations omitted);O’Donnell, 642 P.2d at 836.

[fn11] McGlauflin, 857 P.2d at 369.

[fn12] Id.

[fn13] Id. at 368.

[fn14] AS 12.47.060 provides in pertinent part that “[i]n a prosecution for a crime when the affirmative defense of insanity is not raised and when evidence of mental disease or defect of the defendant is not admitted at trial [to negate mental state], and the defendant is convicted of a crime, the defendant, the prosecuting attorney, or the court on its own motion may raise the issue of whether the defendant is guilty but mentally ill.”

[fn15] 806 P.2d 325 (Alaska App. 1991).

[fn16] Id. at 326.

[fn17] Id.

[fn18] Id.

[fn19] Id.

[fn20] Id.

[fn21] Id. (citing R.H. v. State, 777 P.2d 204 (Alaska App. 1989)).

[fn22] Id. at 326

[fn23] Id.

[fn24] Id.

[fn25] Id.

[fn26] Id. at 327.

[fn27] Id.

[fn28] Id.

[fn29] Id. at 328 (citations omitted).

[fn30] Id.

[fn31] Id. at 328-29.

[fn32] Id. at 329.

[fn33] See Amidon v. State, 604 P.2d 575, 577 (Alaska 1979) (noting that a trial judge’s decision not to recuse him or herself would likely be reversible error when there is “[a] showing of actual bias in the decision rendered ([e].g., in the sentence imposed) or the appearance of partiality”); Perotti, 806 P.2d at 328).Page 1