STEWART, Judge.
Larry Gondek was convicted of fourth-degree assault for recklessly placing another person in fear of imminent physical injury by words or other conduct. He appeals, contending that his waiver of the right to counsel was invalid, that District Court Judge Joel H. Bolger erred when he allowed the State to introduce evidence of Gondek's demeanor three hours after the assault, and that Judge Bolger erred when he refused to disqualify himself for cause. For the reasons explained below, we reject Gondek's claims and affirm his conviction.
AS 11.41.230 (a)(3).
Facts and proceedings
On May 16, 2000, Gondek went to the Glennallen Elementary School and threatened James R. Smedigar, Jr. Smedigar was the technology director and the small schools principal for the Copper River School District. Gondek's wife was a teacher for the district, and, at the time of the incident, Smedigar supervised Gondek's wife. Apparently, the school district had some concerns about Gondek's wife's attendance at in-service training.
Gondek's and Smedigar's confrontation took place in Smedigar's office. Gondek introduced himself, leaned over Smedigar's desk, waved his finger in Smedigar's face, and told him that if he did not stop "fucking" with his wife, he would "meet [his] maker before [his] time." Gondek was in Smedigar's office for approximately five to ten minutes. When Gondek left, he told Smedigar that he was making a promise, not a threat.
Smedigar found Gondek's conduct during this confrontation "very threatening." Smedigar said that Gondek's voice started out normal, but got "louder and louder" as the confrontation progressed. When Gondek leaned over the desk, his hands were "probably about two inches, three inches" away from Smedigar. Smedigar "was afraid [he] was going to be hit." Based on this conduct, Gondek was charged with fourth-degree assault.
Gondek caused numerous delays before his case got to trial. Among other conduct, in December 2000, he fired his first attorney when the parties, after negotiating an agreement, arrived at the change of plea hearing. Gondek later refused to proceed without counsel, but apparently did not qualify for appointed counsel. Gondek filed unsuccessful petitions in this court and in the supreme court attempting to have counsel appointed. At some point Gondek submitted bankruptcy filings that showed that he qualified for representation at public expense. The public defender agency was then appointed to represent him.
On June 14, 2001, the day his trial was to begin, Gondek asked for a continuance because of problems he was having with medication he was taking for a thyroid condition. As a result, jury selection was canceled and trial was continued. Moreover, because of concerns that Gondek's condition was affecting his competence to stand trial, Gondek was ordered to undergo a psychiatric examination. But Gondek failed to appear for a July 9, 2001, status hearing regarding this psychiatric examination, and he did not report for the exam. Instead, Gondek filed a civil suit in federal court alleging misconduct by — among others — his appointed attorney and Judge Bolger.
Gondek's case went to trial in July 2001, but the jury was unable to reach a verdict, and Judge Bolger declared a mistrial. Gondek was tried again in October 2001. Just before each trial, Gondek asked to represent himself.
Gondek first requested to represent himself on July 10, 2001. On that day, Judge Bolger and Gondek discussed the benefits of having an attorney and the dangers of self-representation. Following this discussion, Gondek was unable to decide whether he wanted to waive counsel. Judge Bolger gave Gondek a two-week delay to consider his options. The day before trial, Judge Bolger again discussed the issue with Gondek. Because Gondek was still unwilling to decide, Judge Bolger denied Gondek's request to represent himself.
Later, on October 8, 2001, the day before the re-trial was to begin, Gondek again moved to represent himself. After another discussion about the benefits of counsel and the dangers of self-representation, and a ruling that the trial scheduled to begin the next day would not be delayed solely because Gondek was going to represent himself, Judge Bolger granted Gondek's request. Judge Bolger also ordered the assistant public defender to remain in court to be available as a stand-by attorney.
Also on October 8, Gondek moved to disqualify Judge Bolger for cause. He claimed that Judge Bolger had shown bias towards him in June 2001, when Judge Bolger said he thought Gondek was being dishonest about his health. Gondek also claimed that Judge Bolger should disqualify himself because he had presided over so many cases with the prosecutor, and because Gondek had named Judge Bolger as a defendant in a federal law suit. Judge Bolger denied the motion, and apparently faxed the motion and his decision to the presiding judge of the third judicial district for review. The record does not show whether the presiding judge reviewed or ruled on Judge Bolger's decision.
Trial started the next day. During the State's direct examination of its first witness, Gondek requested that the assistant public defender take over his case. Judge Bolger granted this request.
Later, over Gondek's attorney's objection, Judge Bolger allowed the State's second witness, Alaska State Trooper Rodney L. Dial, to testify about Gondek's demeanor three hours after the confrontation with Smedigar.
Discussion Gondek validly waived his right to counsel
Gondek claims that Judge Bolger did not ensure that he knowingly and intelligently waived his right to counsel. (Gondek does not claim that he was not competent to represent himself.) This court independently reviews the record to determine whether the defendant knowingly and intelligently waived counsel.
McIntire v. State, 42 P.3d 558, 561 (Alaska App. 2002).
"The best way to establish . . . [a waiver of counsel] is for the trial court to conduct a thorough inquiry of a defendant[.]" As we explained in McIntire v. State,
once a defendant has clearly and unequivocally declared his or her intention to appear pro se, the trial judge must conduct a thorough inquiry into the circumstances surrounding the assertion. . . . This inquiry should be incorporated into the trial record . . . and should include: advising the defendant of the right to counsel and the importance of having counsel; warning the defendant of the "dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open[.]'"; and inquiring into the defendant's educational background, previous experience with criminal trials, and general competence. . . . [T]he defendant must possess the mental competence to understand the dangers and ramifications of self-representation.
Id. (citation omitted).
42 P.3d 558.
In McCracken v. State, the supreme court emphasized that when a defendant desires to represent himself, the trial judge must be satisfied that "the [defendant] understands precisely what he is giving up by declining the assistance of counsel."
518 P.2d 85 (Alaska 1974).
Id. at 91.
Here, Judge Bolger fully complied with James and McCracken. On October 8, 2001, before Judge Bolger granted Gondek's request to represent himself, he discussed with Gondek the risks and disadvantages of proceeding without an attorney. This was the third time Judge Bolger had conducted this inquiry; before Gondek's first trial in July 2001, Judge Bolger on two separate occasions discussed with Gondek the role of an attorney, the advantages of having an attorney, and the disadvantages and risks of proceeding without an attorney. Judge Bolger also inquired extensively into Gondek's competence to stand trial. Based on these discussions, Judge Bolger determined that Gondek understood on October 8 what he was giving up by declining the assistance of counsel. We agree with Judge Bolger's finding and conclude that he did not err when he ruled that Gondek was making a knowing and intelligent waiver of his right to counsel.
The challenged evidence
Gondek also claims that Judge Bolger erred when he allowed Trooper Dial to testify that Gondek was upset three hours after the assault when he described his confrontation with Smedigar.
Trooper Dial testified that when Gondek came to the trooper post to tell his version of what had occurred at the school:
It was obvious to me that he was very upset about the incident, and very concerned about it. He was talking louder than I would expect somebody to talk in a normal tone, more rapid movements, over emphasizing movements, just very forceful . . . in getting toward his side of the events to the point where he wanted to hand me several sheets of paper that he wanted me to take a look at and actually make copies of.
On appeal, Gondek claims that Judge Bolger committed clear error when he found that this evidence "had any relevance," that he incorrectly applied Evidence Rule 103, and that he failed to apply the Evidence Rule 403 balancing test.
Decisions regarding the admission or exclusion of evidence are "largely within the trial court's discretion." On appeal, this court will overturn the trial court's decision only if the record shows an abuse of discretion. An abuse of discretion is found "only when we are left with a definite and firm conviction, after reviewing the whole record, that the trial court erred in its ruling."
Hawley v. State, 614 P.2d 1349, 1361 (Alaska 1980); McGill v. State, 18 P.3d 77, 80-81 (Alaska App. 2001).
Hawley, 614 P.2d at 1361.
Shepard v. State, 847 P.2d 75, 79-80 (Alaska App. 1993) (citation omitted).
Gondek fails to show that Judge Bolger erred. Under Evidence Rule 401, relevant evidence is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." In this case, the State had to prove that Gondek recklessly placed Smedigar in fear of imminent physical injury by words or other conduct. Gondek claims that the demeanor evidence had no relevance because "Smedigar's state of mind during his interaction with Mr. Gondek is wholly independent of Mr. Gondek's demeanor three hours after the interaction." But the evidence that Gondek was talking louder than normal, over-emphasizing his physical motions, and acting "very forceful" when he spoke with the trooper three hours after his confrontation with Smedigar supported an inference that Gondek had become quite emotional over his wife's conflict with the school administration. The evidence thus suggested that Gondek was in a similar emotional state during his confrontation with Smedigar. This, in turn, was relevant to the jury's decision on the issue of whether Gondek had recklessly placed Smedigar in fear of imminent physical injury. This evidence tended to corroborate Smedigar's account of what transpired between him and Gondek.
Because this contested evidence was relevant, Judge Bolger properly applied Evidence Rule 103 when he admitted the evidence and allowed the jury to determine its weight.
Judge Bolger also decided that the evidence would not confuse the jury and was more probative than prejudicial under Evidence Rule 403. Gondek notes that at trial, he identified as prejudicial the risk that the jury "could make the incorrect assumptions that Mr. Gondek's demeanor [at 11:30 a.m.] could relate back [to 8:30 a.m.]." He does not, however, explain how this inference would be incorrect, let alone unfairly prejudicial. The jury had already heard Smedigar testify that Gondek had been forceful when confronting him earlier that day. Smedigar testified that Gondek had leaned over his desk, waved his finger in his face, and told him that he would meet his maker. Smedigar also said that Gondek's voice started out normal, but got "louder and louder" as the confrontation progressed.
Finally, Gondek fails to address in his brief how the jury could have been confused by Trooper Dial's evidence. We conclude that Gondek has not shown that Judge Bolger abused his discretion when he admitted the contested evidence.
The recusal request
Gondek next claims that Judge Bolger erred when he rejected Gondek's request that he disqualify himself as the trial judge. Gondek filed his request on October 8, 2001, the day before the second trial was scheduled to begin.
In this request, Gondek gave three reasons supporting recusal. First, he claimed that disqualification was called for because Judge Bolger had made "highly prejudicial and bias[ed] statements, i.e., Defendant has been dishonest about his medical condition from the beginning." Second, Gondek said that Judge Bolger "seems highly prejudic[ed] and biased in favor of prosecution of defendant. Fact: [the prosecutor] has appeared before the Judge Bolger trial court in hundreds of cases." And third, Gondek noted that Judge Bolger had been named by Gondek as a defendant in a federal civil case. Judge Bolger only addressed the first and third reasons when he denied Gondek's request. Gondek did not seek an explicit ruling on the second reason.
Under AS 22.20.020(a)(9), a judge should recuse himself or herself whenever "the judicial officer feels that, for any reason, a fair and impartial decision cannot be given." In Perotti v. State, we held that disqualification under subsection (a)(9) is also mandated when, under the circumstances of the case, "an unmistakable appearance of bias will arise from a judge's participation in a case."
806 P.2d 325 (Alaska App. 1991).
Id. at 327.
A judge's decision to deny a disqualification motion is reviewed under the abuse of discretion standard; the judge's conclusion that he or she can decide the case fairly will constitute an abuse of discretion whenever "it is plain that a fair-minded person could not rationally come to that conclusion on the basis of the known facts."
Id. at 328 (quoting Amidon v. State, 604 P.2d 575, 577 (Alaska 1979)).
Turning first to Judge Bolger's comment about Gondek's credibility with regard to his medical condition, we note that the circumstances in Gondek's case are similar to those in Coffey v. State. There, the supreme court ruled that a judge was not presumptively disqualified solely because the judge, ruling against the defendant in a pre-trial motion, said that he found the defendant's testimony "not believable." In addition, the supreme court pointed out that Coffey had not identified a single instance in which the judge had made an allegedly biased ruling.
585 P.2d 514 (Alaska 1978).
Id. at 525.
Id.
Here, when rejecting Gondek's request, Judge Bolger explained that he had questioned Gondek's honesty about his medical condition at a time when Gondek was again attempting to delay the proceedings. Judge Bolger said he felt at the time that Gondek "had not been entirely honest about his medical condition being a cause that prevented him from standing trial and [was] using his medical condition as a basis not just for one continuance when he was hospitalized, but for several continuances since the case began." Judge Bolger also said that the issue had since "gone by the wayside" because he made the comment when ordering Gondek "to submit to a psychological examination because I felt that we needed an independent opinion of [Gondek's] psychological condition, rather than just relying on [Gondek's] statement." Judge Bolger said that Gondek's competence was no longer an issue for him, and that he did not have any "general bias or animus" toward Gondek.
Judge Bolger's comment was made four months before Gondek's second trial. Judge Bolger made the statement on June 14, 2001, after the first potential jury was released because Gondek claimed that his health prevented him from participating in the trial. Contrary to Gondek's briefing, nothing in the record supports his claim that the statement was made in the presence of jurors or potential jurors.
On June 14, 2001, Gondek said that he had had his thyroid removed and was having difficulty getting his medication properly regulated. Judge Bolger responded that he was "a little skeptical, based not only on the incidents in the last couple days but over the last twelve months concerning Mr. Gondek's willingness to participate in the trial." Moreover, Judge Bolger's concerns went beyond Gondek's physical health — Judge Bolger suggested a custodial exam to determine if Gondek was competent to stand trial. Gondek disagreed that his competency was an issue; instead, he claimed that his medications were affecting his ability to participate in his case. When Judge Bolger asked why Gondek had waited until the week of trial before adjusting his medications, Gondek responded that his doctors had been adjusting his medication again weekly.
Judge Bolger discussed ordering Gondek to undergo a competency exam. But Gondek still maintained that all he needed was a medical exam, not a psychiatric exam. Judge Bolger responded:
. . . competency is really the only issue for me. If he's competent to go to trial, we would continue with the trial right now. . . . The State should have an opportunity to be able to examine the question [of Gondek's competency]. [The] frustration that I'm concerned about right now is the fact that this trial has been scheduled for two months, but no action has been taken . . . to prepare Mr. Gondek for trial. There's no medical opinion that I'm provided with here today as to Mr. Gondek's medical condition, and all the information that I have concerning his medical condition comes from Mr. Gondek, who I believe to be dishonest about this particular issue, and has been over the past year in order to obtain continuances from the court. So I want to have an objective way to make a decision on this issue, and — not that I wouldn't believe information that came from Mr. Gondek or his physician, but at this point I just don't have a lot of objective information to go on.
As this quoted passage shows, Judge Bolger's comment that he thought Gondek was being dishonest was limited to a narrow issue: Whether Gondek had provided sufficient evidence to support his claim that he was unable to participate in trial because of his health. Judge Bolger found that Gondek had not.
Gondek argues that Judge Bolger should have relied on a doctor's letter in the file showing that Gondek had been diagnosed with Graves' disease. But this letter was filed on June 12, 2000, a year before Judge Bolger's comment. In it, the doctor said that Gondek could be expected to be back to his "usual state of health" in six to eight weeks. This letter did not support Gondek's claim in June 2001 that his medications were causing his problems.
Judge Bolger essentially ruled that Gondek's claim that his medications were causing his problems was unsupported, and that this unsupported claim was insufficient to justify constant delays. Like the judge's statement in Coffey, Judge Bolger's comment was not enough to warrant disqualification. And like the defendant in Coffey, Gondek does not cite a single example of an allegedly biased ruling.
In his brief, Gondek relies on Romero v. State to support his claim that Judge Bolger, based on his comment, should have disqualified himself. But Romero is easily distinguishable. There, the trial judge not only cross-examined the defendant, but then — still in the presence of the jury — characterized Romero's testimony as a "misrepresentation" and as "something that I believe was just simply not correct." We found that these comments could "easily be taken by the jury as a comment by the judge on Romero's credibility"; hence, there was a substantial risk that the judge's questioning could have influenced the jury. The circumstances in Gondek's case were nothing like those in Romero. Nor was Judge Bolger's comment made in the presence of the jury.
785 P.2d 904 (Alaska App. 1990).
Id. at 906.
Id. at 906-07.
Although he does not identify any allegedly biased rulings by Judge Bolger, Gondek does claim, relying on Willie v. State, that Judge Bolger demonstrated bias by ruling on Gondek's motion for a judgment of acquittal without asking for the State's response. (Gondek inaccurately claims that Judge Bolger did this twice. The second time Gondek moved for an acquittal, Judge Bolger took the motion under advisement.) Gondek does not claim that Judge Bolger's ruling was erroneous, but asserts that Judge Bolger's failure to ask the State to respond created the impression of partiality that we criticized in Willie.
829 P.2d 310 (Alaska App. 1992).
See id. at 312-13.
But Willie involved a fairly complex and fact-driven pre-trial suppression motion. In contrast, Gondek moved for a judgment of acquittal based on a purported lack of evidence. He does not renew that argument on appeal. This apparent concession that his motion lacked merit undercuts his claim that Judge Bolger was prejudiced against him. From our review of the record, we conclude that Judge Bolger's ruling on Gondek's motion without a response from the State did not demonstrate bias.
See id. at 312.
Gondek adds that Judge Bolger showed bias when, at various times throughout the proceedings, he interpreted Gondek's remarks as a refusal to answer the judge's questions. But Gondek does not cite the record to support this claim. Gondek also claims that Judge Bolger was biased because he repeatedly reprimanded or corrected Gondek in front of the jury pool during voir dire and before the impaneled jury. But again, Gondek does not cite the record to support this claim.
The record in this case supports Judge Bolger's finding that he could be fair when presiding over Gondek's trial. Judge Bolger therefore did not abuse his discretion when he declined to disqualify himself from Gondek's case.
Conclusion
The judgment of the district court is AFFIRMED.