King v. People, 84SC348
| Decision Date | 02 December 1986 |
| Docket Number | No. 84SC348,84SC348 |
| Parties | Fred E. KING, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
David F. Vela, State Public Defender, Pamela Stross Kenney and Duane M. Kline III, Deputy Public Defenders, Denver, for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Virginia Byrnes Horton, Asst. Atty. Gen., Denver, for respondent.
We granted certiorari to review an unpublished decision of the court of appeals which upheld the conviction of the petitioner-defendant, Fred E. King, for felony-theft by receiving and conspiracy to commit felony-theft. The court of appeals held that the defendant had waived his constitutional right to counsel by not taking adequate steps to secure retained or appointed counsel prior to trial. We conclude that the record does not establish a knowing, intelligent, and voluntary waiver of counsel by the defendant, and we therefore reverse the judgment of conviction and remand the case for a new trial.
On December 10, 1981, the defendant and a companion, Ronald Milano, carried two plastic bags containing approximately seventy-five to one hundred rings into a pawn shop in Colorado Springs and negotiated with the manager for the sale of the rings. Because the rings had price tags similar to those used in a jewelry store and because defendant and Milano appeared to be willing to sell the rings for a price much below their actual value, the manager suspected that the rings had been stolen. When the defendant momentarily left the store to make a telephone call, the manager contacted the police. A police officer arrived shortly thereafter and arrested the defendant and Milano outside the pawn shop. An ensuing investigation disclosed that the rings had been stolen from a jewelry store a few weeks earlier.
On December 23, 1981, an information was filed in the district court of El Paso County charging the defendant and Milano with receiving stolen rings valued at $10,000 or more 1 and conspiracy to commit theft by receiving. 2 The defendant and Milano appeared in court on January 4, 1982, and informed the judge that they had retained a Denver lawyer who was unable to appear on that day. The court continued the case until January 18, 1982, for the entry of an attorney. On January 18, the defendant and Milano again appeared without counsel and advised the court that their attorney was engaged in a trial in Denver. The court told them that they had a "right to counsel that can appear" but not to "counsel who can't appear in our court." After asking the defendant and Milano if they wished to proceed without counsel, the defendant responded: "I guess so, yes, until he can come up here." The court then informed the defendant and Milano of their right to counsel, warning them of the disadvantages of proceeding pro se and reminding them of the possibility of obtaining a court-appointed attorney, and scheduled the case for a preliminary hearing on February 5, 1982.
The defendant and Milano appeared for the preliminary hearing without counsel. The court conducted the preliminary hearing, with the defendant and Milano serving as their own counsel, and bound the case over for trial, again advising the defendant and Milano of their right to court-appointed counsel if they could not afford to hire an attorney. The court asked the defendant if he wished to be considered for a court-appointed attorney. The defendant responded that he had been in contact with an attorney but had not yet been able to pay a retainer because he had suffered a heart attack the previous summer and had been unemployed for nine months. The court required the defendant and Milano to enter pleas of not guilty, and the case was then set for trial thirty-one days later, on March 8, 1982. The court advised the defendant and Milano that it could appoint an attorney for them until February 16, 1982, without impairing the scheduled trial date, and then stated:
Here's what I would like to do, Mr. King, Mr. Milano, when you leave the courtroom this morning, I want you to go down to the eligibility investigator on the second floor of this building and she will do a report for us and have it ready. That doesn't mean that you can't hire your own attorney but if by the 16th you haven't been able to retain your own counsel, the report would be ready and available and I can appoint counsel and you could get in touch with them and progress could be made in preparing for trial.
On the scheduled trial date of March 8, 1981, the defendant and Milano again appeared without counsel and the following exchange took place:
We are proceeding to trial. We will be calling the jury up in an hour and a half.
Because the court was apparently engaged in another scheduled trial, the case was continued one week for trial.
On March 15, 1982, the defendant and Milano again appeared. When the case was called for trial, the defendant stated to the court that "[o]ur attorney was supposed to call you up this morning from the Public Defender's Office." The court replied that if an attorney appeared, he would be allowed to enter his appearance, and ordered the bailiff to obtain a jury panel for jury selection.
Outside the presence of the jury panel, the court summarized for the defendant and Milano the procedures to be followed during jury selection and trial. When the defendant was asked if he wanted to state anything for the record, he advised the court that he had contacted the public defender's office and sent "the paper" to the office and that he thought "Tom Herd was going to be here to talk to the Court about being the attorney." The court told the defendant that the public defender's office had not been appointed because the defendant had not requested court-appointed counsel and had not contacted the eligibility investigator. The defendant again informed the court that he believed a public defender would appear to represent him, but the court ordered the case to proceed to jury selection and trial with the defendant and Milano representing themselves.
Jury selection was completed before noon, and the prosecution presented its evidence in the afternoon, resting its case at approximately 4:45 p.m. On the second day of trial, out of the presence of the jury, the defendant protested to the court that he believed his constitutional right to counsel was being violated and that, therefore, he would not participate further in the proceedings. The court responded that it had repeatedly warned the defendant of his right to counsel and of the necessity of contacting the eligibility investigator, stating:
The Court cannot nor will justice tolerate frustration of its procedures by persons who refuse to cooperate, who refuse to take any steps toward securing counsel and who appear on the date of trial and again tell the Court they are going to secure counsel. For these reasons, your decision as to how you participate is, of course, your own strategic decision, however, this case will proceed.
When the defendant attempted to advise the court once again of his efforts at contacting a public defender, the court responded that "the Public Defender's Office does not appoint counsel" but the court does, "and only then upon an investigation being done by the eligibility investigator."
When the trial resumed, the defendant presented no evidence and made no closing argument. 3 The jury returned guilty verdicts to both counts. The court sentenced the defendant to six years plus one year of parole on his conviction for theft by receiving and a concurrent sentence of one year plus one year of parole on his conspiracy conviction. The public defender's office was thereafter appointed to represent the defendant on appeal.
The court of appeals affirmed the judgment of conviction, holding that the defendant knowingly and intelligently waived his right to counsel. We thereafter granted the defendant's petition for certiorari. 4
"The right of one charged with a crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours." Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 796, 9 L.Ed.2d 799 (1963). The Sixth Amendment right to counsel, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, includes both the right to court-appointed counsel for an indigent and the right to a retained attorney for a defendant who is financially able to pay for legal representation. The Colorado Constitution also guarantees the right of counsel to a criminally accused. Colo. Const. art. II, § 16. When an indigent person is charged with a crime and faces the prospect of imprisonment upon conviction, the state is constitutionally required to provide legal counsel ...
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