People v. Apodaca, 98CA0042.
| Decision Date | 27 May 1999 |
| Docket Number | No. 98CA0042.,98CA0042. |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jose APODACA, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
James O. Simpson, Denver, Colorado, for Defendant-Appellant.
Opinion by Judge VOGT.
Defendant, Jose Apodaca, appeals the judgment of conviction and order of restitution entered on a jury verdict finding him guilty of third degree assault. We affirm.
Defendant was charged with second degree assault following an altercation in which the victim was stabbed in the stomach. He was convicted of third degree assault and sentenced to two years in the county jail, to be served in the Department of Corrections concurrently with a sentence in another case. The amount of restitution was set at $9,073.52. The court entered the amount on the mittimus and also entered a separate order directing defendant to pay that amount to the clerk of the court within one year of the date of the order.
Defendant first contends that the trial court erred in refusing to dismiss his public defender and continue the trial so that a private attorney could be retained to represent him. We do not agree.
A few weeks before trial, defendant filed a motion to dismiss the public defender and appoint private counsel. He subsequently withdrew the motion, stating that he and his counsel had worked out their problems.
On the morning of trial, defendant again moved to dismiss the public defender, claiming ineffective assistance of counsel. Defense counsel also filed a motion to withdraw. He cited an irreconcilable conflict that could not be revealed to the court and, as a separate basis for his motion, claimed that defendant was unable to make intelligent decisions regarding his defense because he no longer trusted his counsel.
The court denied both motions. It found that defendant had failed to establish any reason to conclude that defense counsel had been ineffective and that, in spite of disagreements over trial strategy, defendant was still able to communicate with counsel. The court also denied defendant's request for a continuance to enable his mother to raise money for a private attorney, noting that there was no assurance that private counsel would be found. When presented with the option of proceeding pro se, defendant elected to continue representation by the public defender.
Defense counsel then made a sealed record in which he stated that the conflict with his client arose because of defendant's intent to present fabricated testimony. However, at trial, he advised the court that he was no longer concerned about that conflict and was comfortable with presenting defendant's testimony to the jury. The court noted at the time that, based on its observations, it was clear that defendant and his counsel were communicating with each other.
A defendant's motion to discharge an attorney, an attorney's motion to withdraw, and a motion for a continuance are generally addressed to the sound discretion of the trial court. The court's ruling on such motions will not be disturbed on review in the absence of a clear abuse of discretion. People in Interest of M.M., 726 P.2d 1108 (Colo. 1986).
When an indigent criminal defendant voices objections to court-appointed counsel, the trial court must inquire into the reasons for dissatisfaction. If the defendant establishes good cause, such as a conflict of interest or a complete breakdown of communication, the court must appoint substitute counsel. People v. Arguello, 772 P.2d 87 (Colo.1989). Conversely, if the court has a reasonable basis for concluding that the attorney-client relationship has not deteriorated to the point where counsel is unable to give effective assistance, the court is justified in refusing to appoint new counsel. People v. Schultheis, 638 P.2d 8 (Colo.1981).
In determining whether to appoint substitute counsel, the court may consider the timing of the motion, the inconvenience to witnesses, and the possibility that any new counsel will be confronted with similar difficulties. People v. Rubanowitz, 688 P.2d 231 (Colo.1984).
If the court determines that substitution is not warranted, it may insist that the defendant choose between continued representation by existing counsel and appearing pro se. People v. Arguello, supra.
Under these standards, the trial court did not abuse its discretion in declining to dismiss the public defender and appoint substitute counsel to represent defendant.
Contrary to defendant's contention, the record does not indicate that there was a complete breakdown of communication between defendant and his counsel. On the contrary, not only did the trial court observe that there had been "considerable and ongoing conversation" between the two during trial, but defense counsel stated at sentencing that he and his client had "worked together as a good team" after getting past their initial differences.
Nor was the court required to appoint substitute counsel based on an asserted conflict of interest. Defendant argues on appeal that there was a conflict of interest because of defense counsel's "personal disbelief" of defendant's version of the events following his altercation with the victim. However, this argument is based on statements made by defense counsel at the sentencing hearing, at which he indicated that he had originally not believed his client's story. At the time the motions to withdraw and to dismiss counsel were before the court, no issue was raised regarding defense counsel's asserted disbelief of his client's account of the events. In fact, defendant himself stated at that time that his "conflict" was with the public defender's office, not with his individual counsel.
To the extent the trial court may have inferred, based on counsel's reference at the hearing to People v. Schultheis, supra, that counsel was concerned about perjured testimony, the court was correct in observing that such a conflict would be present regardless of whether a different attorney was appointed.
Finally, in determining whether to grant the motions and appoint substitute counsel, the court was entitled to take into consideration that the motions were made on the morning of trial, that the public defender indicated he was prepared to proceed, and that no private attorney was available at that time to take over the case. See People v. Rubanowitz, supra.
In a related claim, defendant contends that he received ineffective assistance of counsel because his attorney failed to investigate and pursue certain evidentiary problems with the prosecution's case and failed to consult experts or order testing of blood samples. Again, we disagree.
Initially, we note that defendant's ineffective assistance claim was raised in the trial court, and addressed by that court, only in connection with his pretrial motion to dismiss his counsel. The trial court has not had the opportunity to consider this claim in proceedings under Crim. P. 35(c). While we may nevertheless address the claim on direct appeal, our review is limited to whether ineffective assistance of counsel is established based on the record before us. See People v. Thomas, 867 P.2d 880 (Colo.1994).
In order to establish ineffective assistance of counsel, defendant must prove that defense counsel's performance fell below the range of competence demanded of attorneys in criminal cases, and that the deficient performance prejudiced his case. To establish prejudice, defendant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the results of the proceeding would have been different. Davis v. People, 871 P.2d 769 (Colo.1994).
While a defendant is entitled to pretrial investigation sufficient to reveal potential defenses and the facts relevant to guilt or penalty, mere disagreement as to trial strategy will not support a claim of ineffectiveness. Whether to call a particular witness is a tactical decision within the discretion of trial counsel. Further, an attorney's decision not to interview certain witnesses, if made in the exercise of reasonable professional judgment, does not amount to ineffective assistance. Davis v. People, supra.
At the hearing on defendant's pretrial motion to dismiss his counsel, defense counsel explained his reasons for certain of the decisions which defendant had cited as evidence of ineffective assistance, and stated that he did not believe he had been ineffective. The prosecutor also stated that defense counsel had conducted a thorough investigation, spoken to all of the prosecution witness who were willing to be interviewed, viewed the evidence, and, as demonstrated by the jail records she had obtained, had spent a great deal of time with defendant. The court noted that counsel was experienced and had demonstrated competence in other cases. There was thus ample support for the trial court's conclusion that defendant did not establish at the pretrial hearing that his counsel had been ineffective.
As to the asserted instances of ineffectiveness raised on appeal that were not addressed by the trial court, we likewise conclude that the record does not establish either substandard performance or prejudice.
Defendant focuses primarily on counsel's failure to have blood stains tested. However, evidence presented at trial showed that both defendant and the victim were injured in the altercation. Thus, even if testing had shown that certain stains were defendant's blood and not the victim's, defendant has not established that such evidence would likely have changed the outcome of the proceedings.
We likewise reject defendant's claim that the prosecution violated his due...
To continue reading
Request your trial
-
People v. Bergerud
...(Colo.App.2005), aff'd on other grounds, 158 P.3d 922 (Colo.2007); People v. Garcia, 64 P.3d 857, 863 (Colo.App.2002); People v. Apodaca, 998 P.2d 25, 28 (Colo.App.1999); but see People v. Abdu, 215 P.3d 1265 (Colo.App.2009), cert. denied No. 09SC498, 2009 WL 2916988 (Colo. Sept. 14, 5. In ......
-
McMillan v. State
...he was not involved and named other persons who might have been involved.”Grissom v. State, 624 So.2d at 710. Compare People v. Apodaca, 998 P.2d 25 (Colo.Ct.App.1999) (“When dealing with evidentiary material of which no more can be said than it could have been subjected to tests, a failure......
-
Velasquez v. Faulk
...not amount to ineffective assistance of counsel if it is made in the exercise of reasonable professional judgment. See People v. Apodaca, 998 P.2d 25, 29 (Colo. App. 1999).A defendant may present a voluntary intoxication defense to negate the existence of the specific intent element of the ......
-
People v. Tresco
...the defendant alleged that his counsel, among other things, repeatedly told defendant "there is nothing you can do"); People v. Apodaca , 998 P.2d 25, 28 (Colo. App. 1999) (the trial court did not abuse its discretion in declining to appoint substitute counsel where the defendant objected t......
-
Section 16 CRIMINAL PROSECUTIONS - RIGHTS OF DEFENDANT.
...to guilt or penalty, mere disagreement as to trial strategy will not support a claim of ineffectiveness of counsel. People v. Apodaca, 998 P.2d 25 (Colo. App. 1999). And while counsel may not prevent a defendant from presenting an alibi during his own testimony without a voluntary, knowing,......
-
Section 25 DUE PROCESS OF LAW.
...evidence from a crime scene that might be favorable to the defendant. People v. Moore, 701 P.2d 1249 (Colo. App. 1985); People v. Apodaca, 998 P.2d 25 (Colo. App. 1999). Nor to preserve explosives or bombs. The prosecution does not have the duty to preserve high explosives, homemade bombs, ......
-
Formal Opinion No. 114—responsibilities of Respondent Parents' Attorneys in Dependency and Neglect Proceedings; Adopted October 14, 2006; Revised June 19, 2010
...defendant's dissatisfaction with the rule that an attorney, and not a defendant, determines motion and trial strategy); People v. Apodaca, 998 P.2d 25, 29 (Colo.App. 1999) (whether to call a particular witness is a tactical decision within the discretion of trial counsel; further, an attorn......
-
Restitution in Criminal Cases
...1998) (discussing CRS § 16-11-204.5). 12. CRS § 16-11-102(4). See also People v. Johnson, 780 P.2d 504 (Colo. 1989); People v. Apodaca, 998 P.2d 25 1999), cert. denied, Docket No. 99SC591 (April 24, 2000); Tipton, supra, note 13. CRS § 17-2-201(5)(c)(I). See also CRS § 16-18.5-106(3). 14. C......