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State v. Raymond Junkins
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2001 ME 133
Docket: 	Yor-00-330
Submitted 
  on Briefs:  	June 22, 2001
Decided:	September 10, 2001

Panel: 	WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




STATE OF MAINE v. RAYMOND JUNKINS


CALKINS, J.

	[¶1]  Raymond Junkins appeals from the judgment entered in the
Superior Court (York County, Fritzsche, J.) following a jury verdict finding
him guilty of five offenses: intentional or knowing murder, 17-A M.R.S.A.
§ 201(1)(A) (1983); attempted murder (Class A), 17-A M.R.S.A. §§ 152(1)
and 201(1)(A) (1983); robbery (Class A), 17-A M.R.S.A. §§ 651(1)(D) and (2)
(1983); theft by unauthorized taking or transfer (Class D), 17-A M.R.S.A.
§§ 353, 362(1) and (4)(B) (1983 & Supp. 2000); and tampering with a
witness (Class B), 17-A M.R.S.A. § 454(1)(A) (Supp. 2000).  Counsel, who
was appointed to represent Junkins on appeal, has requested leave to
withdraw on the ground that the appeal is frivolous.  Counsel has submitted a
brief summarizing the facts and outlining four potential arguments on
appeal.  Junkins has submitted, pro se, a request that counsel not be allowed
to withdraw, and he asks that counsel be required to brief two issues.  We
conclude that the appeal is not frivolous; we deny counsel's request to
withdraw; and we require counsel to brief the potential issues he has
identified.  
I. BACKGROUND
	[¶2]  Howard Lafoe died of stab wounds inflicted on the evening of
September 3, 1998.  Lafoe was the caretaker of Verna Junkins, who was frail
and suffering from dementia.  She was known to keep from $2000 to $6000
in $20 bills in her purse at any given time.  On the evening that Lafoe died,
Verna Junkins had injuries to her neck consistent with having been choked
or smothered.  Her purse and Lafoe's wallet were missing and never
recovered.
	[¶3]  Raymond Junkins, the grandson of Verna Junkins, was charged
with Lafoe's murder, the attempted murder of Verna, and other offenses. 
The evidence at trial included testimony that, soon after the murder,
Raymond's shirt was bloody and he had a substantial amount of cash in $20
bills.  When his girlfriend asked where he got the money, he said he stole it. 
Raymond's ex-wife testified that on September 4, he asked her to lie to
anyone who inquired about his whereabouts on the evening of the murder
and to say that he was with her.  He asked her to dispose of a black trash
bag.  A friend, who had posted bail for Raymond on an escape charge
pending in New Hampshire, testified that she told Raymond that she would
turn him over to New Hampshire officials if he did not pay a substantial debt
he owed her.  Raymond paid her in $20 bills shortly after Lafoe's murder.
	[¶4]  After five days of trial, the jury convicted Raymond Junkins on all
charges.  He was sentenced to forty years incarceration on the murder
charge and to lesser concurrent periods of incarceration on the other
charges.
II. APPELLATE COUNSEL'S MOTION TO WITHDRAW
	[¶5]  The Superior Court appointed counsel to represent Raymond
Junkins on appeal.  In his brief filed with this Court counsel states that there
are no issues of arguable merit and that the appeal is wholly frivolous.  For
that reason, counsel seeks leave to withdraw from representation of Junkins. 
Nonetheless, counsel identified four potential issues: (1) the sufficiency of
the evidence; (2) an evidentiary ruling excluding statements by Verna
Junkins to the police shortly after the murder; (3) an evidentiary ruling
allowing evidence of the New Hampshire charge of escape pending against
Junkins; and (4) whether the jury pool was tainted by remarks from a
member of the pool. 
	[¶6]  Counsel further states in his motion to withdraw and brief that
he reviewed the complete record and transcripts.  He talked with Raymond
Junkins by telephone and corresponded with him by mail.  Counsel spoke
with Junkins' trial attorney.  He sent a copy of his brief to Junkins.  
	[¶7]  Junkins filed a pro se "Objection to Counsel's Request for Leave
to Withdraw."  In that document, Junkins asks that counsel be ordered to
brief the issues of the exclusion of Verna Junkins' statements to the police
and whether the jury selection was tainted by pretrial publicity.{1}  Junkins
requests, in the alternative, that new counsel be appointed to represent him
on appeal.
	[¶8]  In his brief, counsel states that he is following the procedure
established in Anders v. California, 386 U.S. 738 (1967).  In Anders the
Supreme Court examined the right to counsel on appeal as enunciated in
Douglas v. California, 372 U.S. 353 (1963), and recognized the ethical
dilemma of an attorney who has been appointed to prosecute an appeal he
believes to be frivolous.  Anders, 386 U.S. at 744.  The Court designed a
procedure to be followed when counsel believes an appeal is frivolous.{2}  That
procedure is designed to safeguard the constitutional right to counsel on
appeal.  We have not adopted the Anders procedure.{3}  
	[¶9]  In Smith v. Robbins, 528 U.S. 259 (2000), the Supreme Court
reviewed Anders.  The Court held that the Anders procedure was merely
one method of ensuring the constitutional right to counsel and that the
states are free to fashion their own procedures for handling frivolous
appeals.{4}
	[¶10]  We have reviewed the issues identified by counsel and by
Raymond Junkins, and we conclude that they are not wholly frivolous.  
Although a defendant has no constitutional right to prosecute a wholly
frivolous appeal, and no constitutional right to counsel for a frivolous appeal, 
McCoy v. Court of Appeals of Wis., Dist. 1, 486 U.S. 429, 436-38 (1988), a
defendant does have a constitutional right to pursue an appeal with arguable
merit and a right to representation in that pursuit, Anders, 386 U.S. at 744. 
Because the issues identified by Junkins and his counsel are not wholly
frivolous, we deny counsel's motion to withdraw.  We instruct counsel to
brief these issues and to "support his client's appeal to the best of his
ability."{5}  Id.
	The entry is:
Motion of defendant's counsel to withdraw denied. 
Defendant's counsel shall file a brief arguing the
issues previously outlined within twenty-eight days. 
The State shall have twenty-eight days to file its
brief.  Defendant's counsel may file a reply brief
within fourteen days after service of the State's brief.

Attorneys for State: G. Steven Rowe, Attorney General Donald W. Macomber, Asst. Attorney General William Stokes, Asst. Attorney General 6 State House Station Augusta, ME 04333-0006 Attorney for defendant: Douglas D. Hendrick, Esq. P O Box 387 Cornish, ME 04020
FOOTNOTES******************************** {1} . Although the issue of pretrial publicity is not precisely the same issue identified by Junkins' counsel, the two issues may be related. {2} . Pursuant to Anders, an attorney who, after a conscientious review of the record, determines the appeal to be wholly frivolous, requests permission to withdraw. That request, along with the attorney's statement that the appeal is frivolous, is accompanied by a brief "referring to anything in the record that might arguably support the appeal." Anders, 386 U.S. at 744. A copy of the brief is sent to the defendant, who is given time to raise any other points. The appellate court then examines the record and determines for itself whether the appeal is frivolous. If the appeal is frivolous, the court may grant counsel's withdrawal request and dismiss the appeal. If any of the points on appeal are arguable, and therefore not frivolous, the court must afford counsel to the defendant. Id. Counsel, in this case, appears to be following a variant of Anders, that is, the procedure utilized in Wisconsin and described by the Supreme Court in McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429 (1988). The McCoy procedure required counsel to discuss why the appeal was frivolous. Although the Supreme Court found the McCoy procedure to be constitutional, it criticized this aspect of the McCoy procedure in Smith v. Robbins, 528 U.S. 259, 281-82 (2000). {3} . In an appeal from an order terminating parental rights, we expressly stated that we were not deciding the applicability of Anders in such cases. In re William P., 2001 ME 25, ¶ 3, 765 A.2d 76, 77. We have not discussed the Anders procedure in a criminal case. {4} . In Smith v. Robbins, the Court examined the new procedure California established in People v. Wende, 600 P.2d 1071 (1979). Pursuant to the Wende case, when counsel concludes that an appeal is frivolous, counsel files a brief with the appellate court summarizing the facts and procedural history, with citations to the record. Counsel also attests that he has reviewed the record, explained his evaluation to the defendant, provided the defendant with a copy of the brief, and informed the defendant of the right to file a pro se supplemental brief. Under Wende counsel neither explicitly states that the appeal is frivolous nor requests leave to withdraw. The appellate court conducts a review of the entire record. If it determines the appeal is frivolous it may dismiss it. If it determines that any issue is arguable it orders further briefing on that issue. The Supreme Court held that Wende fulfills the constitutional guarantee of counsel. Aspects of the Wende procedure that the Court expressly approved include: (1) the determination by both counsel and the appellate court that the appeal is frivolous; (2) counsel is not allowed to withdraw; and (3) the submission of a brief with the procedural and factual history and citations to the record ensures that counsel has examined the record and aids the appellate court is its own evaluation. Smith v. Robbins, 528 U.S. at 280-81. {5} . Although this case potentially affords us the opportunity to establish a procedure for court-appointed appellate attorneys to follow when they are persuaded that an appeal is frivolous, we decline to do so. The issues raised by counsel and by Junkins are not frivolous, and, thus, this case does not squarely present the dilemma of a frivolous appeal. Furthermore, from our lack of discussion of this issue in the thirty-four years since Anders was decided, it appears that appellate counsel in Maine generally follow the American Bar Association Standard for Criminal Justice, Standard 4-8.3 (3rd ed. 1993), Counsel on Appeal. Under that standard, appellate counsel does not seek to withdraw from a criminal appeal solely because counsel has determined that the appeal has no merit; if counsel cannot persuade the client to abandon a wholly frivolous appeal, counsel proceeds to represent the client with effective, quality representation. See James E. Duggan & Andrew W. Moeller, Make Way for the ABA: Smith v. Robbins Clears a Path for Anders Alternatives, 3 J. App. Prac. & Process 65, 98 n.211 (2001) (suggesting that Maine follows the ABA approach de facto as a matter of practice); Martha C. Warner, Anders in the Fifty States: Some Appellants' Equal Protection is More Equal Than Others, 23 Fla. St. U. L. Rev. 625, 651 n.212 (1996) (reporting that Maine is one of several states that receives no or only sporadic Anders-type briefs).