People v. Arko

• Citation: 159 P.3d 713
• Decision Date: 05 October 2006
• Docket Number: No. 04CA1050.,04CA1050.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Johnnie Erick ARKO, Defendant-Appellant.
• Court: Court of Appeals of Colorado

159 P.3d 713

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Johnnie Erick ARKO, Defendant-Appellant.

No. 04CA1050.

Colorado Court of Appeals, Div. VI.

October 5, 2006.

Rehearing Denied November 2, 2006.

John W. Suthers, Attorney General, Cheryl Hone, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Keyonyu X O'Connell, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge J. JONES.

Defendant, Johnnie Erick Arko, appeals his judgment of conviction by a jury for attempted reckless manslaughter and the trial court's corresponding five-year aggravated sentence. We affirm.

I. Background

According to the prosecution's evidence, defendant and the victim periodically dated each other. On April 6, 2003, during a telephone conversation, the victim told the defendant that they should see less of each other. Following a later telephone conversation, during which the victim told defendant not to come to her house, defendant entered the victim's house through the basement. Defendant surprised the victim in her living room and choked her during an altercation which lasted between thirty and sixty minutes. During the altercation, defendant shouted repeatedly that the victim needed to die that night. The victim was unable to breathe and struggled to speak to defendant. Defendant periodically loosened his grip, only to resume choking the victim.

Defendant finally released his grip and began talking to the victim, during which time she was able to locate her purse, keys, and cell phone. Defendant then told the victim to brush her teeth because they were bloody. The victim was able to convince defendant to brush his teeth as well, which gave her the opportunity to escape. The victim drove to the home of her brother-in-law.

The victim's brother-in-law called the police. The victim went to the hospital for treatment. She experienced soreness in her neck and difficulty swallowing, and she sustained various bruises, abrasions, scratches, fingernail marks, cuts, and other markings all over her body.

Police arrested defendant that night at the victim's home. Defendant admitted to police that he choked the victim that night, but explained that he was merely demonstrating what some men had done to him in a bar earlier that day. Defendant later claimed that he and the victim began to argue after he arrived at the victim's house that night, and that he placed his hand over her mouth to stop her from screaming at him. Defendant claimed that his hand then "went" from her mouth to her throat, where he held her for between two and four minutes.

Defendant was initially charged with attempted first degree murder and first degree burglary. The charges were later amended to attempted second degree murder, in violation of §§ 18-2-101 and 18-3-103(1)(a), C.R.S.2006; second degree burglary with intent to commit second degree murder, in violation of § 18-4-203(1), (2)(a), C.R.S.2006; and second degree burglary with intent to commit third degree assault, also in violation of § 18-4-203(1), (2)(a).

The case was tried to a jury. The jury found defendant not guilty of second degree burglary with intent to commit second degree murder and second degree burglary with intent to commit third degree assault. However, the jury was unable to reach a verdict on the attempted second degree murder charge. The trial court declared a mistrial on that charge.

The attempted second degree murder charge was retried to another jury. The jury was instructed on the attempted second degree murder charge and the lesser included offense of attempted reckless manslaughter. The jury found defendant not guilty of attempted second degree murder and guilty of attempted reckless manslaughter.

The trial court sentenced defendant to five years in the Department of Corrections, which was in the aggravated range for the offense of conviction. Sections 18-1.3-401(1)(a)(V)(A), (6), 18-2-101(4), 18-3-104(2), C.R.S.2006.

II. Discussion

A. Right to Counsel

Defendant argues that the trial court violated his constitutional right to effective assistance of counsel by requiring him either to represent himself or to retain counsel he believed to be ineffective and by failing to adequately inquire into the reasons for his dissatisfaction with his court-appointed attorney. We disagree.

Before his first trial, defendant filed a pro se motion for discovery materials, claiming that his attorney had allowed him to view those materials for only five hours. The trial court denied the motion, noting that defendant was represented by counsel. Shortly thereafter, defendant filed a pro se motion to dismiss the charges against him based on a violation of his right to a speedy trial. He claimed in his motion that his attorney had prevented him from entering a not guilty plea at the initial advisement of the charges (which would have started the speedy trial clock running), and had failed to investigate a crucial witness, whom defendant did not identify. The trial court denied the motion as "without merit" the same day it was filed.

At the pretrial conference, the trial court informed defendant that he could not file motions on his own behalf because he was represented by an attorney, but that he had the right to represent himself if he so chose. The trial court then asked defendant, "Now is there an issue about effective assistance of counsel?" Defendant reiterated his concerns that his attorney had failed to provide him with adequate time to review discovery and failed to investigate a key witness. The trial court responded:

All right. As I indicated before that motion that I read has no merits [sic], so that's dismissed.

I need to know whether or not there is an issue as to effective assistance of counsel. And if you want to take that up right now, Mr. Arko, you need to understand that any conversations that you have with your attorney are privileged. And if you are going to make allegations about your attorney's ineffectiveness you are, in fact, waiving that privilege.... And I need to know whether or not that is an issue at the outset.

Defendant replied that there was an issue as to ineffective assistance of counsel and noted again, generally, that his rights had been denied, and that his attorney had prevented him from entering a not guilty plea at the earliest possible date.

At that point, the trial court told defendant that his counsel had followed the usual procedure regarding the timing of the plea and that his counsel, who was very experienced, was entitled to make decisions on how to handle the case. Defendant merely continued to argue that he had been denied his right to a speedy trial.

The trial court then told defendant that if he wanted to file any motions himself, he would have to represent himself. The trial court asked defendant whether he wanted to represent himself. Defendant responded, "I don't think I should be put in that situation where you have to either represent myself or to feel not happy with my representation, so I guess the ultimatum is, yeah, I still would like to keep [defense counsel] as my counsel, yes." The trial court replied:

Okay. Well, I'm not putting you in that position, I'm not giving you ultimatums. So that's what you need to understand. All I'm telling you, sir, is you've got an attorney, your attorney files motions. If there are motions filed by you, other than having to do with your attorney, I'm not entertaining them.

(Emphasis added.) Defendant said, "Okay.... That's fine." He did not thereafter file a motion to have a different attorney appointed to represent him, but continued to be represented through the remainder of the proceedings, including two trials, by his originally appointed counsel.

A criminal defendant has a constitutional right to the effective assistance of counsel, as well as the alternative right of self-representation. People v. Arguello, 772 P.2d 87, 92 (Colo.1989). The court may not give a defendant an ultimatum that forces him to choose between these two rights. People v. Chavez, 621 P.2d 1362, 1365 (Colo. 1981).

Here, the trial court made clear that it was not giving defendant such an ultimatum. Rather, the trial court merely informed defendant that so long as he was represented by counsel, he could not file pro se motions. A defendant does not have a constitutional right to "hybrid representation" — that is, representing himself while he is also represented by court-appointed counsel. Arguello, supra, 772 P.2d at 92. Thus, the trial court's explanation to defendant of the circumstances in which he could file pro se motions was correct.

Nor did the trial court err in failing to inquire further into the reasons defendant believed his counsel was ineffective.

"[W]hen an indigent defendant voices objections to court-appointed counsel, the trial court has the obligation to inquire into the reasons for the dissatisfaction." Arguello, supra, 772 P.2d at 94. If the defendant establishes "`good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict,'" then the court must provide defendant with a new attorney. Arguello, supra, 772 P.2d at 94 (quoting McKee v. Harris, 649 F.2d 927, 931 (2d Cir.1981)). However, if the trial court determines that substitution of counsel is not warranted, the court can insist that the defendant make a choice between proceeding with court-appointed counsel and representing himself. Arguello, supra, 772 P.2d at 94. In such a scenario, a defendant must be given a "clear choice" between retaining present counsel and waiving his right to counsel. Arguello, supra, 772 P.2d at 94 (quoting United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987)).

Under the circumstances of this case, the trial court was not obligated to inquire further as to defendant's dissatisfaction with his counsel because defendant had fully articulated the disputes with his counsel...