772 P.2d 87 (Colo. 1989), 87SC212, People v. Arguello

Docket Nº:87SC212.
Citation:772 P.2d 87
Opinion Judge:MULLARKEY, Justice.
Party Name:The PEOPLE of the State of Colorado, Petitioner, v. Fidel Helario ARGUELLO, a/k/a John Clifford, Respondent.
Attorney:Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David R. Little, Asst. Atty. Gen., Paul H. Chan, Asst. Atty. Gen., Denver, for petitioner. Lee D. Foreman, Saskia Jordan, Haddon, Morgan & Foreman, P.C., Denver, for respondent.
Case Date:April 17, 1989
Court:Supreme Court of Colorado

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772 P.2d 87 (Colo. 1989)

The PEOPLE of the State of Colorado, Petitioner,


Fidel Helario ARGUELLO, a/k/a John Clifford, Respondent.

No. 87SC212.

Supreme Court of Colorado, En Banc

April 17, 1989

Page 88

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David R. Little, Asst. Atty. Gen., Paul H. Chan, Asst. Atty. Gen., Denver, for petitioner.

Lee D. Foreman, Saskia Jordan, Haddon, Morgan & Foreman, P.C., Denver, for respondent.


We granted certiorari to review the court of appeals' decision, People v. Arguello, 737 P.2d 442 (Colo.Ct.App.1987), which reversed the felony escape conviction of Fidel Helario Arguello. The court of appeals held that the prosecution did not meet its burden of showing by clear and convincing evidence that defendant through his conduct effectuated a waiver of his right to counsel. We disapprove of the court of appeals' language regarding the prosecution's burden but we affirm the court of appeals' holding on the merits. We remand the case to be returned to the district court for a new trial.


On September 4, 1981, while incarcerated on a felony menacing charge, Arguello allegedly

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climbed over the security fence of the exercise yard of the Pitkin County Jail in Aspen and walked away. In March 1984, Arguello was returned to Pitkin County from Nevada on a detainer and was charged with felony escape. The court advised Arguello of his rights and informed him that Calvin Lee, a Deputy Public Defender, would contact him later that day. Arguello indicated that he knew Lee and did not want him as his attorney. Without any inquiry, the judge responded, "If Mr. Lee is not acceptable to you, then there are other alternatives...." Arguello told the judge at this first hearing that he had mental problems and that he spoke "to the spirits all the time." The record contains medical reports that Arguello apparently suffered from paranoia.

In order to make a record of why the Public Defender's office would not be used to represent Arguello, the court held a hearing the next week. At the hearing, Arguello expressed his "massive distrust for the public defender office," and indicated in general terms his inability to work with the public defender office, but made no specific references regarding Lee. The court made no further inquiry except to ask if Arguello wanted an attorney, which Arguello answered in the affirmative. Arguello also asked to be appointed as co-counsel for himself, to which the judge apparently agreed. However, the trial court did not make any express ruling in this regard, did not define what the term "co-counsel" meant in this context, and did not conduct any inquiry into Arguello's understanding and ability to represent himself. That afternoon, the court then appointed another attorney, Tom Crumpacker, to represent Arguello.

Arguello at his next court appearance expressed his dissatisfaction with Crumpacker, claiming that he lacked sufficient ability and experience and that the way he dressed "seemed to be third-rate." Without any inquiry, the court agreed to relieve Crumpacker of his appointment and to substitute Kevin O'Reilly, whom the judge claimed "has probably as good a record as any criminal lawyer in the valley." When appointing O'Reilly, the judge said, "If [Arguello] wants [O'Reilly] to be co-counsel, then that's all right with me, but I'm not willing to have Mr. Arguello go to trial without counsel."

Arguello's status as "co-counsel" for himself was never officially established by the judge, and it apparently caused some confusion. At a preliminary hearing two days later on April 4, 1984, the district attorney asked for clarification of Arguello's role as co-counsel, to which the judge replied simply, "For the purposes of discovery, Mr. O' Reilly is lead counsel."

Apparently again dissatisfied with his attorney on May 21, 1984, Arguello at a motions hearing asked that O'Reilly be removed from the case. Arguello claimed that he heard O'Reilly talking with the district attorney about his case in an attempt to "sell him out." Arguello asserted that he had no trust or confidence in O'Reilly and that he could no longer communicate with him. At the same hearing, Arguello also moved to withdraw from his co-counsel status stating,

I would like to withdraw myself as counsel because I've just recently discovered that during any proceeding that I'm representing myself, should I fail to object to anything or should I fail to present certain issues that on appeal I waive them rights, and Your Honor, I don't wish to waive any rights whatsoever.

The judge did not request any additional evidence on Arguello's conflict with O'Reilly but commented that, to his knowledge, O'Reilly had never violated a client's confidence or sold out a client. The judge did not address Arguello's request to withdraw himself as co-counsel but instead warned Arguello: "You have your choice, Mr. Arguello, either make your peace with Mr. O' Reilly or you can represent yourself." Arguello replied by repeating his request for another attorney, to which the judge responded:

I would suggest to you that the picture you're painting of yourself is that you're going to claim that you cannot get along with an attorney and thereby obstruct justice and I guess that sooner or later

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we're going to have to draw the line and we've just drawn it; that is, Mr. O'Reilly will assist you or you will--if you refuse to accept the assistance, you will have effectively told the court that you're not going to get along with any attorney. We're close to trial and I don't propose to change your representation at this time.

Arguello denied that he couldn't get along with any lawyer, and claimed that the lawyers he had been appointed did not follow the proper legal strategy for him. The judge reiterated to Arguello:

I'll tell you two choices: Accept Mr. O'Reilly's advice on legal issues without discussing strategy with him, or if you elect to waive that; that is, not stand silent and represent yourself. Think all that over.

Despite the unresolved disagreements between Arguello and O'Reilly, O'Reilly continued to act as co-counsel with Arguello throughout the hearings up until the first scheduled trial date of May 30, 1984.

On the May 30th trial date, Arguello was brought into the courtroom to see a jury orientation film Before the trial began. Arguello took the opportunity to insist vehemently that he would neither represent himself nor have O'Reilly represent him. The judge refused to appoint another attorney, and Arguello responded by declaring that he wanted to enter a plea of "not guilty by reason of impaired mental condition." The judge accused Arguello of non-cooperation with his attorneys, and Arguello began to speak "in a foreign language," words he claimed were from the spirits. Eventually the judge relented and agreed to postpone the trial so that Arguello could undergo a competency exam at the state hospital.

In June 1984, after returning from the state hospital, Arguello announced to the court that he no longer wished to represent himself and that he wanted O'Reilly as his lawyer. The court complied, saying it was now "official" that Arguello was not representing himself any more.

In spite of Arguello's ostensible change of heart regarding his attorney, O'Reilly filed a motion on July 18, 1984, to withdraw from further representation of Arguello because of "a conflict." O'Reilly explained the reasons for his withdrawal to the judge:

[Arguello has] accused me of working with the D.A. against him, working with the Court against him. It's just cumulative. There's no way that I can continue working with him, give him any kind of effective assistance as counsel.... I just don't think because of holding a license to practice that I have to subject myself to physical abuse like this and verbal abuse.... I just don't think it's appropriate for me to continue, and I don't think it's healthy for me.

Arguello protested, saying he never verbally or physically threatened O'Reilly, but that he didn't trust O'Reilly. The judge reiterated his opinion that O'Reilly was a good attorney but did not question O'Reilly about the factual basis for his motion to withdraw. The court concluded by announcing to Arguello that he had lost his right to an attorney:

What you need to understand, Mr. Arguello, is that you have elected to go forward without the best counsel this court can afford you. I'm going to grant Mr. O'Reilly's Motion to Withdraw. However, you should also understand that in making that election, we're still going to trial.

A heated exchange then ensued, with Arguello directing a stream of profanity at the judge which continued for eight pages of the transcript. Arguello resisted the sheriff's attempts to subdue him, and the judge held him in contempt.

Later that day Arguello appeared Before the judge to apologize and the court accepted his apology as purging the contempt. At the conclusion of the hearing, Arguello again stated, "I need a lawyer I feel, Judge." Arguello followed up his request with a written motion asking that counsel be appointed for him. From this point on and throughout the trial, the court denied or ignored Arguello's requests for counsel. On the day of trial, prior to jury selection when it became clear that Arguello was

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going to trial without an attorney, Arguello continued his protest saying,

Your honor, I don't wish to represent myself and I won't. I flat refuse to. People go ahead and do the railroad number and I won't say nothing. I'm not going to waive my rights or anything. I'm not an attorney, and I don't see how I should be forced to play the role of the attorney. The Sixth Amendment of the United States guaranteed--

After the judge tried to explain to Arguello the procedure for selecting the jury, Arguello inveighed, "I don't...

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