August 16, 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.

Colorado Court of Appeals: Defendant Knowingly, Intelligently, and Voluntarily Waived Right to Counsel Despite Lack of Arguello Advisement

The Colorado Court of Appeals issued its opinion in People v. Schupper on Thursday, July 3, 2014.

Indigent—Court-Appointed Counsel—Right to Counsel—Advisement—Recusal—Bias.

On September 7, 1995, defendant was charged with a single count of felony theft. After numerous hearings on defendant’s claim that he was indigent and had requested court-appointed counsel, defendant’s request ultimately was denied. He represented himself at trial and was found guilty of theft.

On appeal, defendant contended that the trial court erred when it determined he was not entitled to court-appointed counsel based on the collection investigator’s report. The Court of Appeals affirmed the trial court’s judgment.

First, defendant did not meet his burden to prove he was indigent. Second, the trial court’s finding that defendant “lived a luxury lifestyle” was supported by the evidence introduced at numerous hearings over a period of six months. Therefore, the trial court did not abuse its discretion in determining that defendant was not entitled to court-appointed counsel.

Defendant next contended that the court erred by failing to provide him an express advisement concerning his right to counsel before forcing him to proceed pro se at trial. The trial court never gave defendant an express advisement of his rights after it decided defendant was not entitled to court-appointed counsel. The record establishes that defendant knew of his right to counsel, his right to court-appointed counsel if he was indigent, and the importance of having counsel. Also, defendant is highly educated, and he understood the charges against him and the possible penalties from those charges. Defendant demonstrated that he understood his Fifth Amendment right to remain silent, as well as his right to subpoena and confront witnesses. Based on the totality of these circumstances, defendant knowingly, intelligently, and voluntarily waived his right to counsel.

Defendant further contended that Judge Schwartz erred in denying his repeated requests for recusal based on the court’s alleged bias. Rulings of a judge, including an indigency determination, are not sufficient in themselves to show bias or prejudice. Additionally, although Judge Schwartz may have been a material witness in the perjury cases against defendant, the case would not be heard in his court. Therefore, it was not err for the court to deny defendant’s request for recusal. The judgment was affirmed.

Summary and full case available here.