Barham v. State

Decision Date18 October 1994
Docket NumberNo. 49A04-9308-CR-306,49A04-9308-CR-306
Parties(Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). Court of Appeals of Indiana, Fourth District
CourtIndiana Appellate Court
OPINION

RATLIFF, Senior Judge.

STATEMENT OF THE CASE

Courtney Barham appeals his conviction of voluntary manslaughter. We reverse and remand for a new trial.

ISSUE 1

Did the trial court violate Barham's Sixth Amendment right to be represented by the counsel of his choice when it denied his private counsel's appearance?

FACTS

On January 29, 1993, Courtney Barham was at the home of his former girlfriend, Carol Kennedy. Barham and Kennedy had lived together at various times, and Barham was moving his possessions out of Kennedy's apartment. Barham and Kennedy had been arguing throughout the evening. Barham went upstairs to get his shotgun and rifle out of Kennedy's bedroom closet, and Kennedy followed him. One of Kennedy's teenage daughters heard a shot, and Barham came down the stairs carrying the guns. He had blood on the front of his clothes. Barham walked out the front door, and Kennedy's two daughters went upstairs and found their mother had been shot in the face and was dead. Barham spent the night in a nearby field. The next morning, he turned himself in to the police. According to Barham, he had the shot gun in his hand, he and Kennedy were struggling, he tripped over a chair, and the shotgun discharged accidentally, killing Kennedy. Barham was charged with murder.

Barham's initial hearing was February 2, 1993, and a jury trial was scheduled for April 12, 1993. On February 12, the court appointed public defender Ricardo Mendez to represent Barham. On April 6, Judge Pro Tem Allen Smith conducted a pre-trial conference. Deputy Prosecutor Amy Barnes requested a continuance. The court granted it, and rescheduled the trial for May 3.

On April 26, 1993, Barham filed a pro se motion requesting a new attorney because he was not satisfied with his public defender's performance. 2 The following day, Judge Pro Tem Allen Smith conducted another pre-trial conference. Barham told the court that he had "paid legal counsel (Lorine Regulus) that should have been obtained yesterday, if not it will be completed today." (Record, at 154). The judge stated as follows:

"[I]f Ms. Regulus enters her appearance on your behalf, Mr. Barham, she needs to be ready to try this matter on Monday. Because the mere fact that she enters her appearance on your behalf doesn't mean that this case is going to be continued. So I'm telling you that now so you can communicate that with her so you understands [sic] if she's going to enter her appearance in your case then she's going to have to be prepared to try it on Monday.... So we'll take up the matter of Ms. Regulus when in fact, if she does, enter her appearance on your behalf, Mr. Barham, which, you know, she's free to do.... I'll deny your motion for appointment of new counsel at this time, Mr. Barham.... [I]f Ms. Regulus enters her appearance and she wants to file any motion for continuance or anything we can take care of it at that time, Mr. Barham." (Record, at 156-58).

On April 28, Regulus entered her appearance and filed a motion requesting a continuance to allow her to prepare for trial. Without a hearing, Presiding Judge Paula Lopossa denied Regulus' appearance, and her request for a continuance. Judge Lopossa wrote the following on Regulus' appearance:

"The Court does not grant Ms. Regulus' appearance to be entered. Trial is scheduled May 3, 1993 and defendant has been in jail since his arrest." (Record, at 44).

On the day of trial, during voir dire, Barham filed a pro se motion requesting a continuance to allow his private counsel to re-enter her appearance and prepare for trial. 3 The court denied Barham's motion. A jury convicted him of voluntary manslaughter. Barham now argues that the trial court violated his Sixth Amendment right to be represented by counsel of choice when it denied his private counsel's appearance and his request for a continuance. 4

DECISION

The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall ... have the assistance of counsel for his defense." U.S. Const., Amendment VI. The right to counsel of choice has been described as an "essential component" of the Sixth Amendment right to counsel, U.S. v. Nichols (1988), 10th Cir., 841 F.2d 1485, 1501, and "a defendant should be afforded a fair opportunity to secure counsel of his own choice." Powell v. Alabama (1932), 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158. The right privately to retain counsel of choice derives from a defendant's right to determine the type of defense he wishes to present. U.S. v. Mendoza-Salgado (1992), 10th Cir., 964 F.2d 993, 1014; U.S. v. Collins (1990), 10th Cir., 920 F.2d 619, 625, cert. denied, (1991), 500 U.S. 920, 111 S.Ct. 2022, 114 L.Ed.2d 108. Lawyers are not fungible, and often the most important decision a defendant makes in shaping his defense is the selection of an attorney. Nichols, at 1502. In situations where a defendant is able to retain counsel privately "the choice of counsel rests in his hands, not in the hands of the state." Collins, at 625. In criminal cases, the right to retain counsel of choice becomes a question of fundamental fairness, the denial of which may rise to a level of constitutional violation. Id. A conviction attained when a court "unreasonably or arbitrarily interferes with an accused['s] right to retain counsel of choice ... cannot stand, irrespective of whether the defendant has been prejudiced." Id; U.S. v. Novak (1990), 2d Cir., 903 F.2d 883, 886; Fuller v. Diesslin (1989), 3d Cir., 868 F.2d 604, 606, reh'g denied, cert. denied, (1989), 493 U.S. 873, 110 S.Ct. 203, 107 L.Ed.2d 156.

Barham contends that the trial court violated his Sixth Amendment right to be represented by counsel of his choice by denying both his private counsel's appearance and his request for a continuance. We note that the State has failed to respond to Barham's argument that his Sixth Amendment right was violated when the trial court denied his private counsel's appearance. Rather, the State has responded only to Barham's argument that the trial court erred in failing to grant his request for a continuance. The State's brief states as follows:

"The Defendant apparently recognizes that he does not have a right to delay his trial by acquiring new counsel shortly before trial, rather, he asserts as error the trial court's refusal to allow that counsel to enter her appearance. The Defendant's argument is simply disingenuous. There is not the first hint in the Record of the Proceedings that the proposed private counsel could be ready for trial six days after entering her appearance. The Defendant cannot simply ignore the above reference case law by attempting to cast this as a case in which he was denied his right to counsel." (State's brief, p. 7). 5

We note that the case law to which the State directs us is distinguishable from the instant case. In Dickson v. State (1988), Ind., 520 N.E.2d 101, 105, our supreme court affirmed the trial court's denial of a continuance when the defendant moved to replace his public defender with private counsel who would only accept the case on the condition that a continuance would be granted to allow him to prepare for trial. Dickson did not allege that his constitutional right to be represented by counsel of his choice had been violated. Rather, he argued that the trial court abused its discretion in denying his motion for a continuance. In addition, private counsel had not entered an appearance. Here, Barham argues that his constitutional right to be represented by counsel of his choice has been violated. His private counsel entered an appearance, and she did not condition her representation of Barham on the grant of a continuance. In addition, she offered to assist the public defender, indicating that she could have been ready for trial on May 3.

In Parr v. State (1987), Ind., 504 N.E.2d 1014, the defendant moved for a continuance to allow him to obtain private counsel. At the hearing on his motion for a continuance, he stated that he was unsure whether he had sufficient funds to obtain private counsel. The trial court denied his motion, and our Supreme Court affirmed. Id. at 1017. Here, Barham had already obtained counsel, and counsel had filed an appearance.

In addition, we note that the present case differs from others in which the issue of right to representation by counsel of choice is bound inextricably with a continuance motion. Barham did not move for a continuance on the day of trial. Vacendak v. State (1982), Ind., 431 N.E.2d 100; Harris v. State (1981), Ind.App., 416 N.E.2d 902; McCraney v. State (1979), 180 Ind.App. 190, 388 N.E.2d 283; U.S. v. Hampton (1972), 7th Cir., 457 F.2d 299, cert. denied, (1972), 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101. Private counsel had entered an appearance for the defendant prior to trial. McCollum v. State (1991), Ind., 582 N.E.2d 804, reh'g denied; McCraney, supra. The defendant expressed dissatisfaction with his public defender's work. McCollum, supra; McCraney, supra (public defender stated that he had a good working relationship with the defendant); Hampton, supra.

In Hampton, supra, the Seventh Circuit affirmed the trial court's denial of appointed counsel's motion to withdraw on the morning of the day set for trial. Appointed counsel moved to withdraw because Hampton decided that he wanted private counsel. The trial court offered Hampton the choice of proceeding to trial with appointed counsel or producing a retained counsel of his choosing for trial at 1:30 p.m. on that day--a period of four (4) hours. Hampton proceeded to trial with his appointed counsel, and on appeal he...

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  • Jones v. State
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