July 24, 2017

Colorado Court of Appeals: Defendant’s Right to Private Counsel of Choice Conflicts with State’s Appointment of Experts

The Colorado Court of Appeals issued its opinion in People v. Thompson on Thursday, May 4, 2017.

Child Abuse Resulting in Death—Sixth Amendment—Right to Counsel—Public Defender—Indigent—Ancillary Services—CJD 04-04—Statute of Limitations—False Reporting—Conspiracy—Out-of-Court Statements—Hearsay—Expert Witnesses—Credibility—Consecutive Sentences.

Defendant was charged with multiple crimes related to child abuse. After he was indicted, he appeared before the court with attorney Lane, who had represented defendant for about two years as “retained counsel.” Lane stated that defendant was indigent, and although Lane was willing to continue to represent defendant as “retained counsel,” defendant could not pay for ancillary services, such as investigators or experts. Lane stated that the Constitution required the court to provide ancillary services to indigent defendants at state expense. Relying on a U.S. Supreme Court case, United States v. Gonzalez-Lopez, Lane contended that the court should allow him to continue to represent defendant and also agree to pay state funds for ancillary services. Lane asserted that Gonzalez-Lopez is in conflict with the Colorado Supreme Court case People v. Cardenas, under which defendant was being forced to choose between two constitutional rights: the right to counsel of choice and the right to receive ancillary services at state expense. The trial court declined to overrule Cardenas and appointed public defenders to represent defendant, and Lane’s connection with the case ended. Defendant was convicted of multiple charges, including child abuse resulting in death, child abuse, assault, false reporting, concealing a child’s death, contributing to the delinquency of a minor, and conspiracy. The trial court sentenced defendant to 12 years in jail to be followed by 102 years in prison.

On appeal, defendant asserted that the trial court denied his Sixth Amendment right to counsel of his choice when it did not authorize Lane to receive state-funded ancillary services for defendant’s representation. Indigent defendants do not have a constitutional right to use state funds to pay for attorneys or for ancillary services of their choosing. Defendant only had a right to state-funded ancillary services if the public defender or court-appointed alternate defense counsel represented him. Therefore, the trial court did not wrongfully deny defendant’s constitutional right to counsel of choice when it appointed public defenders to represent him. However, Chief Justice Directive 04-04 (CJD 04-04), Appointment of State-Funded Counsel in Criminal Cases and for Contempt of Court, would have allowed the trial court to pay for support services for a defendant who is represented by private counsel. The trial court did not consider the Directive when it decided to appoint the public defenders, and defendant’s private counsel did not ask the court to do so. Any error in not considering CJD 04-04 was harmless in this case.

Defendant also contended that the trial court erred when it denied his motion for judgment of acquittal on the false reporting and conspiracy to commit false reporting counts because they were barred by the applicable statute of limitations. The record contains sufficient evidence to support these convictions based on conduct that had occurred within 18 months of when the grand jury indicted defendant on those charges. Therefore, these convictions were not barred by the statute of limitations.

Defendant further contended that the trial court erroneously admitted the out-of-court statements of defendant’s girlfriend and children who lived with them. As to the girlfriend’s statements, some were admissible as statements against interest; others were admissible as co-conspirator statements; and though the Court of Appeals could not determine the trustworthiness of one statement, it concluded its admission was harmless error. The children’s statements were variously admissible as non-hearsay, or under the child hearsay statute, or under the residual hearsay exception.

Defendant additionally contended that two expert witnesses improperly vouched for the children’s credibility. However, the experts did not vouch for the children’s veracity, either directly or indirectly; rather, their testimony concerned the typical demeanor and traits of abused children.

Defendant also asserted that the trial court erred when it admitted certain financial evidence, contending that it was only relevant to show that defendant and his girlfriend were “sponges on society.” However, this evidence was relevant and its relevancy was not outweighed by the danger of unfair prejudice.

Defendant also argued that the court admitted evidence he described as cumulative. The court concluded that the trial court did not abuse its discretion.

Finally, the trial court did not abuse its discretion when it imposed consecutive sentences on the misdemeanor child abuse counts.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Speak Your Mind

*