People v. Bergerud

• Decision Date: 11 January 2010
• Docket Number: No. 08SC936.,08SC936.
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Allen Charles BERGERUD, Respondent.
• Court: Colorado Supreme Court

223 P.3d 686

The PEOPLE of the State of Colorado, Petitioner v. Allen Charles BERGERUD, Respondent.

No. 08SC936.

Supreme Court of Colorado, En Banc.

January 11, 2010.

Rehearing Denied February 16, 2010.^*

John W. Suthers, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, CO, Attorneys for Petitioner.

Samler and Whitson, P.C., Eric A. Samler, Denver, CO, Attorneys for Respondents.

Justice MARTINEZ delivered the Opinion of the Court.

I. Introduction

The People appeal the court of appeals' determination that Allen Charles Bergerud was denied his constitutional right to counsel and so is entitled a new trial. See People v. Bergerud, 203 P.3d 579 (Colo.App.2008).

Bergerud was charged with two counts of first degree murder. His court-appointed lawyers indicated in their opening statements that they would endeavor to show that Bergerud — due to various medical and psychological conditions as well as high levels of intoxication — had not acted with deliberation in killing the two victims, and so should not be convicted of first degree murder. Upon hearing these opening statements, Bergerud requested new counsel on the basis that his attorneys refused to pursue and present the self-defense theory he desired. The trial court denied his motion, and Bergerud elected to proceed to trial pro se in order to argue his theory of self-defense. He was subsequently convicted.

On appeal, Bergerud claimed the content of his lawyers' opening statements and the denial of his motion for substitute counsel violated his constitutional right to representation. The court of appeals, reasoning that his lawyers' statements to the jury were tantamount to a guilty plea to lesser homicide offenses over Bergerud's objection, remanded the case for a new trial. We granted the People's petition for certiorari to consider whether Bergerud's right to counsel had been improperly denied.¹

Because Bergerud decided to proceed pro se after voicing his disagreement with his court-appointed attorneys, the central question before us is whether Bergerud's waiver of his right to counsel was knowing, intelligent, and voluntary. That question in turn depends on whether his attorneys' trial decisions violated Bergerud's trial rights, thus forcing him to choose between his right to counsel and protecting other rights associated with his defense, such as the choice to testify or enter a plea of not guilty. Although defense counsel is free to develop defense theories based on reasonable assessments of the evidence, as guided by her professional judgment, she cannot usurp those fundamental choices given directly to criminal defendants by the United States and Colorado Constitutions. Although we conclude that Bergerud's lawyers did not violate his right to enter a plea, it is unclear on the record before us whether they wholly deprived him of his right to testify, or if they failed in their duty to investigate possible defenses due to a complete breakdown in communications. Either such violation would have undermined the voluntary nature of Bergerud's waiver of his right to counsel.

Accordingly, we reverse the opinion of the court of appeals and direct further specific inquiries consistent with this opinion.

II. Facts and Procedural Posture

Bergerud was charged with capital murder for killing his ex-girlfriend and her male companion, as well as two counts of first degree assault on a police officer. During the incident, Bergerud shot both victims, and then exchanged gunfire with police officers before being shot in the hand, apprehended, and placed under arrest.

At the first of what would be two trials, Bergerud's hired attorney argued that Bergerud had not acted with the requisite mental state of deliberation and so could not be convicted of first degree murder. To this end, defense counsel highlighted Bergerud's very low IQ test scores and his intoxicated state at the time of the killings. The jury was not given instructions concerning lesser included offenses. Faced with an all-or-nothing choice between conviction for first degree murder or acquittal, the jury was unable to reach a consensus. It was dismissed as deadlocked after several days of deliberations.

Subsequently, the prosecution withdrew its request for the death penalty. Bergerud's original attorney was excused as Bergerud could no longer afford his fees, and the court appointed Bergerud new counsel. Prior to the beginning of his second trial, the trial court held several hearings on pre-trial motions where it was apparent that court-appointed counsel intended to adopt a similar trial strategy to that employed in the first trial. During voir dire, Bergerud's new attorneys continued to focus on evidence related to his mental state at the time of the killings, concentrating on jury members' history with mental illness and addiction, and asking about their ability to take evidence of those things into account when making their final determination.

Also consistent with this choice of defense, the opening statements offered by Bergerud's new attorneys at the beginning of the second trial focused largely on Bergerud's low IQ, his diabetes, and his intoxicated state at the time of the killings. Additionally, his lawyer stated that Bergerud was so confused he likely did not know or accurately remember what happened on the night of the killings. After opening statements, Bergerud requested that he be allowed to talk to the judge.

In chambers, Bergerud stated that he wanted to fire his attorneys because they refused to develop and present his defense as he requested and asked that a new opening statement be given. The trial court, upon hearing of the disagreement between Bergerud and his attorneys, suspended the trial to allow adequate time to investigate the matter. The trial court then excused the prosecuting attorneys for the afternoon while it held a series of in camera proceedings to inquire into the nature of the conflict between Bergerud and his lawyers. Bergerud explained that his first attorney had written him a letter lamenting the choice not to pursue a theory of self-defense. Trusting his first attorney's determination, Bergerud gave the letter to his court-appointed counsel for his second trial and asked them to present self-defense. According to Bergerud, his new attorneys refused to pursue the theory as it would "take too much work" to develop it. Bergerud complained that his attorneys were "not listening to the information that [he gave] them" and that they were "paying no attention to what [he was] telling them happened that night."

Bergerud's attorneys, though given the opportunity during these proceedings, never commented on the nature of their disagreement with their client nor gave an account of their reasoning on pertinent issues concerning the development of Bergerud's defense. They merely clarified that they did not intend, at that time, to move to withdraw as Bergerud's attorneys.

The trial court advised Bergerud that he was free to testify as to his recollection of the events, and that if evidence were presented to the jury regarding self-defense, the trial court would give the jury an instruction on that defense theory. However, whenever Bergerud conferred with his attorneys off the record, he told the court "they can't help me" once the proceedings had resumed. Bergerud repeatedly told the court he wanted assistance from new counsel, but that he would represent himself if "that's what [he had] to do" in order to present his desired self-defense theory.

The trial court found that Bergerud's disagreement with his lawyers did not amount to a complete breakdown in communications, but was rather a disagreement about trial strategies that were properly left in the hands of counsel. Moreover, finding that Bergerud's request was not timely and that further delay would inconvenience witnesses, the trial court denied his request for new counsel and found that appointing advisory counsel was not practicable. The trial court thus gave Bergerud the option of either proceeding with his court-appointed attorneys or proceeding pro se. Bergerud stated that he would continue pro se. Knowing that Bergerud's decision was based on his desire to pursue his theory of self-defense, the trial court invited the prosecuting attorneys back into the meeting and directed Bergerud to tell them of his self-defense plan in order to resolve any objection they might raise to the presentation of self-defense prior to finalizing Bergerud's decision. The prosecuting attorneys stated that they did not object to Bergerud presenting a self-defense theory — though the statutory deadline for notifying prosecutors of that plan had come and gone — only if Bergerud decided to proceed without counsel. Bergerud subsequently reaffirmed his choice to proceed pro se.

After the trial, the jury convicted Bergerud on one count of first degree murder, one count of second degree murder, and two counts of first degree assault on a police officer. The trial court sentenced Bergerud to life in prison for first degree murder, forty-eight years in prison for second degree murder, and thirty-two years in prison for each assault, all sentences to be served consecutively.

On appeal, Bergerud argued that the content of his attorney's opening statements, as well as the trial court's denial of his request for new counsel, violated his constitutional right to representation. The court of appeals reasoned that, by focusing solely and strongly on Bergerud's alleged inability to formulate the requisite mental state for first degree murder, Bergerud's attorneys had effectively conceded his guilt to lesser homicide offenses despite Bergerud's desire to defend against the charges and seek acquittal. The court of appeals concluded that Bergerud enjoyed a fundamental choice regarding election of a defense theory that would seek acquittal, a choice that Bergerud had been denied, and so reversed the trial court's...