This appeal stems from a non-jury district court conviction following O'Dell's arrest for failure to give information at the scene of an accident.
Reeves saw "Richardson" shortly thereafter at Karluk and 6th Avenue; he was apparently performing a field sobriety test at the direction of a police officer. Later the same evening, when she learned that no Sun Insurance was listed in the telephone directory, she called the police. The same officer who had administered the field sobriety test to "Richardson" responded to her call. He recognized the license number from his earlier traffic stop and located O'Dell through information contained in the traffic citation.
O'Dell's primary claim of error in this appeal is that the district court failed to advise him of his right to counsel. Article I, section 11, of the Alaska Constitution and the sixth and fourteenth amendments to the United States Constitution guarantee an accused the right to assistance of counsel in criminal prosecutions against him. Gregory v. State, 550 P.2d 374 (Alaska 1976); Alexander v. City of Anchorage, 490 P.2d 910 (Alaska 1971); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). In Alexander v. City of Anchorage, supra at 913, we explained:
A conviction under AO 9.10.040(A) carries a maximum jail term of 30 days, and O'Dell, in fact, received a jail sentence. The municipal attorney concedes O'Dell's right to counsel in this proceeding. He maintains that O'Dell was informed of his right to counsel at his arraignment and that O'Dell had the right to appear without counsel under McCracken v. State, 518 P.2d 85 (Alaska 1974), and Faretta v. California, 442 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
At O'Dell's arraignment, the district court delivered a presentation of rights to all those defendants about to appear.
The exchange between the district court and O'Dell concluded with a discussion of bail.
Approximately two months later, O'Dell appeared in the district court for the trial of this matter.
Although an accused does have the right to counsel
Because the right of an accused to be represented by counsel is so fundamental, the trial court's inquiry into whether the accused was apprised of the benefits of
The record before the arraignment judge, as well as the trial judge, fails to reflect a clear waiver by O'Dell of the right to legal representation. Neither in his appearance before the arraignment judge nor at the outset of his trial two months later before another district court judge does the record show that O'Dell understood what he was giving up by declining the assistance of counsel. The standards for waiving assistance of counsel required by McCracken v. State, 518 P.2d 85, 91-92 (Alaska 1974), were not met.
It is clear from the record that the arraignment court did advise O'Dell that he had the right to the assistance of counsel and that the court would appoint the public defender to represent him if he could not afford to hire counsel. What the record totally fails to demonstrate is that O'Dell appreciated what he was giving up by declining the assistance of counsel. In short, the record fails to demonstrate a knowing and intelligent waiver by O'Dell of the right to the assistance of counsel. When questioned by the arraignment judge as to whether or not he planned to obtain the services of an attorney, O'Dell's total response was to the effect that it "was just a matter of clipped bumpers was all it is — there was no accident."
O'Dell's equivocal response to the district court's inquiry as to whether he planned to retain an attorney is not equatable with a knowing and intelligent waiver of counsel under the standards adopted in McCracken v. State, 518 P.2d 85 (Alaska 1974). Although this offense was a minor infraction, the right to counsel still attaches
Reversed and remanded to the superior court with directions to remand to the district court with further directions to set aside O'Dell's conviction and order a new trial.
BURKE, Justice, with whom MATTHEWS, Justice, joins, dissenting.
I dissent from that portion of the majority opinion holding that a reversal is required because O'Dell was denied the assistance of counsel. Although there was not a lengthy discussion of the matter, O'Dell,
O'Dell's reply, when asked if he wanted an attorney, to the effect that the case only involved a "matter of clipped bumpers," only indicates to me that at that time he considered the matter to be too trivial to require the assistance of counsel.
The record shows that four other defendants were individually arraigned before O'Dell's case was reached.
We note that the transcript from the district court arraignment is not before us. We have listened to a tape recording of the proceedings under the authority provided by Rule 9(h), Alaska Rules of Appellate Procedure. We take this opportunity to reiterate the duty of counsel to furnish this court with a record of "[a]ll matters essential to the decision of the questions presented by the appeal... ." Rule 9(d), Alaska R.App.P.
Subsection (b) of this rule provides for the appointment of counsel for persons financially unable to employ counsel. See generally Argersinger v. Hamlin, 407 U.S. 25, 32 L.Ed.2d 530 (1972); Alexander v. City of Anchorage, 490 P.2d 910 (Alaska 1971).