Martinez v. People, 23643

• Decision Date: 16 February 1971
• Docket Number: No. 23643,23643
• Citation: 173 Colo. 515,480 P.2d 843
• Parties: Leroy MARTINEZ, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 843

480 P.2d 843

173 Colo. 515

Leroy MARTINEZ, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 23643.

Supreme Court of Colorado, En Banc.

Feb. 16, 1971.

Allan R. Cooter, Eugene T. Halaas, Jr., Pueblo, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Hoecker, Asst. Atty. Gen., Denver, for defendant in error.

DAY, Justice.

Defendant Martinez was convicted of burglary in the Pueblo district court. He seeks reversal and a new trial, contending that the trial court committed error in refusing to allow appointed counsel to withdraw, and that the counsel thus compelled by the court to remain in the case proved to be ineffective, resulting in his being denied a fair trial.

The difficulties between Martinez and his lawyer were called to the attention of the court six days prior to trial. Counsel informed the court that he had advised the defendant that his defense to the burglary charge was weak and that it was his considered advice that the defendant enter a guilty plea to a lesser charge. When defendant refused to follow the advice of counsel and stated that he wished to have his case tried, the lawyer told Martinez 'I am glad it is not me that is facing the court with the case that you have.' Counsel further advised the court that defendant had made 'some rather strong statements to me which I believe will certainly handicap me in representing him.'

At the hearing on the motion by counsel to withdraw, the defendant stated to the court that his attorney had refused to subpoena some thirteen additional witnesses that could help establish the defendant's whereabouts at the time of the alleged crime, and that he believed counsel's attitude toward him deprived him of due process.

At the conclusion of the hearing, the trial court found that appointed counsel was adequately trained and experienced and ruled that the indigent defendant did not have the right to pick and choose counsel to represent him. We point out that counsel representing the defendant in this court is not the one who represented him in the trial.

I.

We take up the first point--the argument that the trial court abused its discretion in refusing to allow the withdrawal of appointed counsel.

The standard of 'effective assistance of counsel' (Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158) does not guarantee a defendant the right to choose his appointed counsel. Valarde v. People, 156 Colo. 375, 399 P.2d 245. Nor does it guarantee defendant an attorney with whose advice he can agree. Arellanes v. United States, 9 Cir., 326 F.2d 560. There are, however, three areas in which the will of the defendant must be allowed to prevail:

'In making each of these decisions--whether to plead guilty, whether to waive jury trial, and whether to testify--the accused should have the full and careful advice of his lawyer. Although counsel should not demand that his own view of the desirable course be followed, he is free to engage in fair persuasion and to urge his considered professional opinion on his client. Ultimately, however, because of the fundamental nature of these three decisions, crucial in such basic matters governing his own fate, the decisions on these matters belong to the accused.' A.B.A. Project on Standards for Criminal Justice, The Prosecution Function and The Defense Function. Approved draft Feb. 8, 1971.

In State v. Hines, 6 Utah 2d 126, 307 P.2d 887, cited by the defendant in his brief, the court said:

'If the court appoints one such attorney that is sufficient, and the judge may assume his duty is fulfilled unless the defendant makes known some good reason why the counsel appointed could not fairly or properly represent him, or something comes to the court's attention which might reasonably so indicate. * * *' There is nothing to be found in the record in the instant case from which we are able to conclude that appointed counsel was unable to, or did not, render effective assistance. The people presented three eye witnesses who positively identified defendant and placed him at the scene of the crime. During the course of the trial, appointed counsel put three 'alibi' witnesses on the stand, including the defendant's wife and...