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Schug v. State8/18/2004
know the full nature of Howard's conflict. Schug's contention, if accepted, would make it difficult, if not impossible, to find waiver in any case. As we pointed out in Daniels, a defendant has an important right to be represented by counsel of his choice. A court has the authority to deprive a defendant of his counsel of choice only when the court is confronted with a significant conflict of interest where waiver by the defendant would be inappropriate. From our review of the record, including the record of the in-camera hearing, we conclude that Judge Wolverton did not err in concluding that the nature of the conflict was one which Schug could waive, that Schug had sufficient information to make a knowing and voluntary waiver of the conflict, and that Schug made such a waiver.
Evidentiary issues
In addition to his main point on appeal, Schug raises two evidentiary issues. Schug first argues that Judge Wolverton unlawfully restricted his cross-examination of Thorn by preventing Howard from questioning Thorn about prior drug use. But the only ruling that Schug refers to is a ruling that occurred when Howard asked Thorn about the possible consequences of combining cocaine and marijuana on a person's ability to drive. In response, Thorn stated that he had no knowledge of what combining the controlled substances would do. When the State objected to further questioning along this line, Howard withdrew his question before the court made any ruling. Consequently, Judge Wolverton did not make any ruling on this question and Schug has failed to preserve any claim for appeal.
Schug also argues that Judge Wolverton erred by prohibiting him from cross-examining Longoria about the fact that he had been driving with a suspended license at the time of the accident and also had recent speeding violations. Schug argues that this evidence was relevant to rebut Longoria's claim that he was a safe driver. Judge Wolverton ruled that this evidence constituted propensity evidence that was barred by Alaska Evidence Rule 404(b).
In the first place, Schug's briefing does not adequately address his claim.
Schug's entire argument consists of one paragraph in which he cites no case law in support of his argument. He does not explain why Judge Wolverton erred in concluding that Longoria's prior bad acts were not propensity evidence barred by Evidence Rule 404(b). Because Schug was offering evidence of Longoria's prior bad driving record to show that on the evening in question, Longoria was driving in an unsafe manner, the evidence which he sought to admit appears to be explicitly barred by Evidence Rule 404(b). Schug simply has not demonstrated that Judge Wolverton abused his discretion by refusing to admit this evidence. Furthermore, it appears from the record that there was ample evidence demonstrating how Longoria was driving just prior to the accident. It therefore appears that any error in admitting this evidence would not have appreciably affected the jury's verdict, and is therefore harmless.
Conclusion
We conclude that Judge Wolverton did not err in failing to disqualify Schug's trial counsel because of his counsel's prior representation of a witness, in concluding that Schug made a knowing and voluntary waiver of his right to conflict-free counsel, and in limiting the scope of Schug's cross-examination of witnesses Thorn and Longoria. We accordingly affirm Schug's convictions.
The convictions are AFFIRMED.
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