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Schug v. State8/18/2004
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Franklin Schug was defended by an attorney who had previously represented one of the witnesses who was going to testify against him. Schug waived the conflict and the witness testified. A jury convicted Schug. Schug argues that Superior Court Judge Michael L. Wolverton erred by failing to disqualify Schug's trial counsel because of his counsel's prior representation of the witness and in concluding that Schug knowingly waived his right to conflict-free counsel. We conclude that Judge Wolverton did not err in failing to disqualify Schug's trial counsel and in concluding that Schug made a knowing waiver of his right to conflict-free counsel.
Factual and procedural background
On October 7, 2000, Schug made a left turn with his truck from Peck Street onto Muldoon Road and struck two motorcycles and narrowly missed a third motorcycle.
Mark Thorn was driving one motorcycle and his wife Tammy Thorn was riding behind him on the back of the motorcycle. Terry Longoria was driving the second motorcycle with his girlfriend Jerri Romaszewski behind him. Bradley Mork was driving a third motorcycle, but was not involved in the accident. As a result of the collision, Longoria, Mark Thorn, and Tammy Thorn all sustained serious injuries. Drug tests given by the hospital after the accident revealed cocaine and marijuana in Mark Thorn's bloodstream. Some witnesses stated that the motorcycle trio had been speeding and driving erratically prior to the accident, while other witnesses described the motorcyclists as driving normally at the time of the accident.
Schug left the scene of the accident in his truck. Mork followed Schug and forced Schug's truck to stop. Anchorage Police Officer Christopher Nelson arrived at the scene and noticed that Schug had watery and glazed eyes. After Schug failed various field sobriety tests, Officer Nelson arrested Schug for driving while intoxicated. A subsequent breath alcohol test at the police station revealed Schug had a .229 percent blood alcohol content.
The State charged Schug with three counts of first-degree assault, three counts of second-degree assault, two counts of third-degree assault, two counts of leaving the scene of an accident, driving while intoxicated, and driving with a suspended, revoked or cancelled license.
Assistant Public Defender Craig Howard represented Schug at trial. During a recess after opening arguments, the prosecutor notified the court that Thorn had just told her that Howard had represented him 10 years earlier in a drug sale case. Howard could not recall if he had previously represented Thorn. Subsequent investigation revealed that Howard had represented Thorn during the sentencing phase of his 1991 conviction for sales of cocaine.
Based on this turn of events, Judge Wolverton appointed independent counsel for both Schug and Thorn. Judge Wolverton instructed both Schug's and Thorn's independent counsels, to review Thorn's 1991 public defender agency file and case and discuss the potential conflict with their clients. (However, only the independent counsels had access to the criminal file and they could not reveal the contents of the file to Schug or Thorn.)
After reviewing the file, Schug's independent counsel concluded that there was nothing that was directly admissible in Schug's case fro
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