Irvin v. State

• Decision Date: 27 September 1978
• Docket Number: No. 4823,4823
• Citation: 584 P.2d 1068
• Parties: Danny Lane IRVIN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1068

584 P.2d 1068

Danny Lane IRVIN, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below).

No. 4823.

Supreme Court of Wyoming.

Sept. 27, 1978.

K. Craig Williams, Rawlins, for appellant.

V. Frank Mendicino, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Allen C. Johnson, Asst. Atty. Gen., Cheyenne, for appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

THOMAS, Justice.

This is an appeal from a conviction, after trial by jury, of the offense of aggravated robbery while using or exhibiting a firearm, in violation of § 6-66, W.S.1957, now § 6-4-402, W.S.1977. Appellant, Irvin, raises questions concerning the right of an accused to have substitute counsel appointed by the court if a rift has developed between the accused and the public defender, and the correlative right of the accused to a continuance if he chooses to represent himself when the appointment of substitute counsel is denied. Irvin also raises a question relative to evidence demonstrating collateral misconduct for which a mistrial was sought but denied by the trial court. Finding no error in the rulings of the trial court in these proceedings we shall affirm Irvin's conviction.

In presenting his argument to this court Irvin first contends that the denial of his request for appointment of substitute counsel, when supported by the motion of the appointed public defender to be relieved, violated his constitutional and statutory rights, and amounted to an abuse of its discretion by the trial court. His second contention is related to the first, and it encompasses a claim that the denial of his request for a continuance when he chose to represent himself rather than to permit the appointed public defender to represent him, under the circumstances of this case, constituted a prejudicial denial of his constitutional right to a fair trial. The third contention presented by Irvin is that evidence of another criminal act was introduced in the prosecution's case, and that the district court erred in not granting his motion for a mistrial because of this prejudicial error. In responding to these arguments the State of Wyoming urges that both the refusal to appoint substitute counsel and the refusal to grant a continuance were discretionary rulings on the part of the trial court, and that there was no abuse of the exercise of discretion by the trial court in either instance. With respect to the evidence of another criminal act, the State contends that the issue was not properly preserved, and that, in any event, the evidence is proper and admissible as bearing upon the question of identity.

This is an appeal by Irvin from a second conviction arising out of the same circumstances. His first conviction was reversed by this Court. (Irvin v. State, Wyo., 560 P.2d 372 (1977)). Ordinarily such a sequence of events would have little significance in the second appeal, but, as will appear, the fact of a retrial must be taken into consideration in evaluating the exercise of discretion by the trial court insofar as Irvin's first two claims of error are concerned.

The Right to Substituted Appointed Counsel

The person accused of the commission of a crime has the constitutional right to be represented by an attorney of his own choice. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4 (1954); Adger v. State, Wyo., 584 P.2d 1056 (No. 4779, Decided September 11, 1978). This is the construction given to the Sixth Amendment to the Constitution of the United States of America, and the same construction must be given Art. 1, § 10 of the Constitution of the State of Wyoming. See Hoskins v. State, Wyo., 552 P.2d 342 (1976), reh. den., 553 P.2d 1390 (1976); Dryden v. State, Wyo., 535 P.2d 483 (1975). In those instances in which the person accused of crime is unable to employ his own counsel, and thus personally exercise his constitutional right, the choice of counsel is then made for him by the State through the district judge. United States ex rel. Mitchell v. Thompson, 56 F.Supp. 683 (S.D.N.Y.1944). The accused has the absolute right to have counsel appointed if he is unable to employ his own attorney. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963); Hoskins v. State, supra; Dryden v. State, supra.

The rule which appears to be universal, is that the constitutional right to have counsel appointed does not include a right to demand that a particular attorney be appointed by the Court. See cases cited in Annot., 66 A.L.R.3d 996 (1975). This rule also pertains in instances in which a defendant asks for the substitution of a particular attorney. E. g., United States v. Burkeen, 355 F.2d 241 (6th Cir. 1966), cert. den., 384 U.S. 957, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966), reh. den., 385 U.S. 893, 87 S.Ct. 28, 17 L.Ed.2d 127 (1966); People v. Hughes, 57 Cal.2d 89, 17 Cal.Rptr. 617, 367 P.2d 33 (1961); State v. Reid, 146 Conn. 227, 149 A.2d 698 (1959); Douglas v. State, Fla.App., 212 So.2d 42 (1968); People v. Cox, 22 Ill.2d 534, 177 N.E.2d 211 (1961), cert. den., 374 U.S. 855, 83 S.Ct. 1925, 10 L.Ed.2d 1076 (1963); Schuble v. Youngblood, 225 Ind. 169, 73 N.E.2d 478 (1947); Rahhal v. State, 52 Wis.2d 144, 187 N.W.2d 800 (1971). Cf., Commonwealth v. Johnson, 428 Pa. 210, 236 A.2d 805 (1968); and Brewer v. State, 4 Tenn.Cr.App. 265, 470 S.W.2d 47 (1970).

While a trial court has the power in its discretion to appoint substitute counsel, its refusal to do so is not error unless an abuse of discretion is shown. A factual showing of good cause for the appointment of substitute counsel is essential to the demonstration of an abuse of discretion, and good cause is to be found in incompetence, commitment to a position or an interest which would conflict with the furnishing of an effective defense to the accused, or other good reason to conclude that appointed counsel is unable to furnish effective assistance. United States v. Burkeen, supra; Davis v. Stevens, 326 F.Supp. 1182 (S.D.N.Y.1971); Drumgo v. Superior Court of Maren County, 8 Cal.3d 930, 106 Cal.Rptr. 631, 506 P.2d 1007, 66 A.L.R.3d 984 (1973), cert. den., 414 U.S. 979, 94 S.Ct. 272, 38 L.Ed.2d 223 (1973); Martinez v. People, 173 Colo. 515, 480 P.2d 843 (1971); State v. Forsness, 159 Mont. 105, 495 P.2d 176 (1972).

In this instance after remand upon reversal of the first conviction an order was entered in the district court on March 14, 1977, setting the case for trial on April 4, 1977. On March 23, 1977, the public defender filed a motion with a supporting affidavit requesting that the public defender's office be relieved of all obligations in defense of Irvin. The accompanying affidavit stated that prior to the verdict in the first trial Irvin requested the public defender and the assistant public defender to declare themselves incompetent. The affidavit went on to say:

"6. We are unable to achieve the rapport, trust and confidence of said Irvin necessary to the vigorous defense to which he is constitutionally entitled."

It is apparent that this motion was filed at Irvin's behest. The record shows no demand for a hearing of nor a formal denial of this motion by the trial court, but it is clear from the record that when the motion was filed the district court advised the public defender, who in turn advised Irvin, that the motion would not be granted.

On the morning of trial Irvin presented a handwritten petition to proceed pro se and for a continuance which was supported by a purported affidavit. The pleading was not signed, and the affidavit was signed but not verified. The trial court, however, did treat these documents as presenting in part, at least, Irvin's position. Irvin stated in these documents: that the public defender told him he could not change attorneys because the court would not allow it; that he knew of the date of new trial fifteen days previously but that he did not see a lawyer for six days after that, and that then they only discussed pleading to a lesser charge; that he told the public defender he did not want him to represent him and the reason why; that the public defender told him he did not want to represent him, but the court would not take him off Irvin's case; that he and the public defender had had "gulf" differences for 26 months and that he dismissed the public defender in 1975; that the public defender did not handle this prior appeal; that he had the public defender as an attorney two years previously and tried to get him off his case; that he felt that the public defender did not want to help him in any way; that he had asked the public defender several times to go to court and see about a bond hearing; that he also asked about law books and all the public defender told him or talked about was pleading guilty to a lesser charge; that the public defender wanted to do things his own way for his own personal gain, and not in Irvin's interest.

The transcript of the dialogue among the trial judge, counsel and Irvin prior to the trial demonstrates that Irvin agreed that this same case involving the same factual situation had been tried in the court two years previously. The judge stated that the public defender previously had researched the case on the first trial, and that he assumed that the public defender was prepared to go again on the trial set for April 4, 1977. The public defender responded that he was prepared to proceed to trial. In discussing the motion to withdraw made by the public defender the judge pointed out that the motion had been discussed orally and that he had advised the public defender that he could see no reason for relieving him, and that there had been no effort to pursue the motion by asking that it be set for hearing prior to trial. The judge pointed out that appointed counsel was the public defender, and the district judge stated his opinion that he was adequate and competent counsel, which he had demonstrated over a period of two or three years while...