People v. Bolton, 91CA2077

• Decision Date: 01 July 1993
• Docket Number: No. 91CA2077,91CA2077
• Citation: 859 P.2d 303
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James BOLTON, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 303

859 P.2d 303

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. James BOLTON, Defendant-Appellant.

No. 91CA2077.

Colorado Court of Appeals Div. II.

July 1, 1993.

Rehearing Denied Aug. 26, 1993.

Certiorari extension pending May 17, 1994.

Certiorari Denied Sept. 6, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Koehler, Asst. Atty. Gen., Denver, for plaintiff-appellee.

John R. Olsen, Boulder, for defendant-appellant.

Opinion by Judge PIERCE.

Defendant, James P. Bolton, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of two counts of sexual assault on a child. We affirm.

I.

On appeal, defendant contends that the trial court erred in denying his pretrial motion to proceed pro se without conducting a meaningful inquiry to determine whether he had made a knowing, intelligent, and voluntary waiver of counsel. Instead, he contends, the trial court improperly relied upon his lack of legal expertise as grounds for denial of the motion. We disagree.

Criminal defendants are constitutionally guaranteed the right to self-representation. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); People v. Romero, 694 P.2d 1256 (Colo.1985); Colo. Const. art. II, § 16. However, in order to assert that right, a defendant must make an unequivocal request to waive counsel and proceed pro se. If such a request is stated in uncertain terms, it cannot be considered a demand for self-representation, nor can it properly be considered a waiver of the Sixth Amendment right to counsel. People v. Mogul, 812 P.2d 705 (Colo.App.1991).

If a defendant makes an unequivocal demand for self-representation, the court must engage the defendant in a dialogue to explain the consequences of the proceeding pro se and the dangers and disadvantages of self-representation, and to determine if the waiver of the right to counsel is knowing, voluntary, and intelligent. See Faretta v. California, supra; People v. Arguello, 772 P.2d 87 (Colo.1989).

Here, at a pretrial hearing on January 17, 1991, defendant indicated that he wished to waive his right to counsel and proceed pro se. Pursuant to Faretta and Arguello, the trial court then inquired as to defendant's understanding of the proceedings and dangers of self-representation. However, following the advisement, defendant recanted: "When I asked for pro se, that was only for today, but not to go through a trial pro se."

At a subsequent pretrial hearing held on April 4, 1991, defendant again moved to proceed pro se and was advised as to the consequences of proceeding pro se. At the conclusion of the advisement, the trial court asked whether defendant wished to proceed pro se, at which time he responded "No, I'm not asking you to accept my waiver of the right to an attorney. I'm asking to be able to speak in my own defense along with the attorney."

Because he explicitly indicated that he wished to have counsel present, we cannot conclude that defendant unequivocally waived his right to counsel. See People v. Mogul, supra. Therefore, we perceive no error in the trial court's refusal to permit defendant to proceed pro se. See People v. Romero, supra (there is no constitutional right to have advisory counsel appointed).

II.

Defendant next contends that the trial court erred in failing to suspend the proceedings against him in order to determine whether he was competent to stand trial after it ruled at trial that he was not competent to knowingly, intelligently, and voluntarily waive counsel. Again, we disagree.

A criminal defendant is competent to stand trial if he is capable of understanding the nature and course of the proceedings against him and of participating and assisting in his defense and cooperating with defense counsel. People v. Morino, 743 P.2d 49 (Colo.App.1987).

Previously, we have recognized that subjecting an accused to trial when he is incompetent constitutes a denial of due process. People v. Matthews, 662 P.2d 1108 (Colo.App.1983). Accordingly, whenever a "bona fide doubt" as to a defendant's competence to proceed exists, the court must suspend criminal proceedings and make a preliminary finding as to whether the defendant is competent to proceed or, if insufficient information is available for such a finding, order a competency examination. People v. Matthews, supra; § 16-8-111, C.R.S. (1986 Repl.Vol. 8B).

Because the trial court has the opportunity to observe firsthand the defendant, his actions, and his general demeanor, it enjoys substantial discretion in determining whether an issue of competence has been raised. People v. Morino, supra.

Here, defendant raised the issue of his competence to proceed prior to trial, and, following an examination by a court-appointed psychiatrist, defense counsel conceded that defendant was competent to stand trial. Defendant does not challenge the sufficiency of these pretrial procedures.

At trial, defendant again moved to proceed pro se and, during the trial court's advisement, stated that he had taken some "antibiotics" which impaired his ability to think clearly. Based upon this response, the trial court denied the motion, stating that:

I'm not going to proceed further, because I do not believe that I could conclude that if you were under the influence of some medication that impairs your thought processes, that you are voluntarily waiving your right to an attorney. So under these circumstances, I think that any further discussion is moot here.

The trial court conducted no further inquiry into whether defendant had actually taken medication or whether such medication affected his thought processes.

Contrary to defendant's suggestion, the trial court's ruling does not constitute a finding that defendant was incompetent to waive counsel. Rather, our reading of the record reveals that the trial court rejected the motion based solely upon the answers provided by defendant, without making findings of fact.

Furthermore, under the circumstances of this case, we conclude that the trial court was not required to make specific findings as to defendant's competence in ruling on his motion to proceed pro se.

First, in light of the trial court's prior finding of competence, defendant's statement concerning the effects of the "antibiotics," standing alone, was not sufficient to raise a "bona fide doubt" as to his competence to stand trial. See People v. Matthews, supra. Therefore, the trial court did not abuse its discretion in failing to suspend the proceedings to determine defendant's competence.

Second, under the circumstances of this case, we are convinced that defendant's motion was an attempt to delay the proceedings against him rather than a legitimate assertion of his right to self-representation. Therefore, the trial court did not abuse its discretion in rejecting defendant's motion without making findings of fact regarding his competence to waive the right to counsel.

A criminal defendant may not assert the right to self-representation solely to impede the efficient administration of justice. People v. Mogul, 812 P.2d 705 (Colo.App.1991). In exercising its discretion to grant or deny a defendant's request to proceed pro se, particularly if such a request is made after the commencement of trial, the court must determine whether the request was made for purposes of delay or to gain tactical advantage. People v. Mogul, supra.

Here, the record amply supports the conclusion that defendant requested to proceed pro se for the sole purpose of delaying the trial. Indeed, at one point in the proceedings, the trial court specifically stated that:

I've had some ample experience with Mr. Bolton, and it is my impression that he is very adept at manipulating the system and very adept at raising issues at what would otherwise appear to be inopportune moments.

As noted above, prior to trial defendant filed two motions to proceed pro se although he later stated that he wished to have counsel present. At the conclusion of the first day of trial, defendant uttered numerous epithets at the trial court as he left the courtroom and stated that he would "disrupt this motherfucker tomorrow." The next morning, defendant again moved to dismiss counsel and to proceed pro se, although he asserted no inadequacy of his court-appointed counsel or other good cause for the motion.

Thus, under these circumstances, the trial court did not err in denying defendant's motion without making detailed findings of fact. See People v. Mogul, supra.

III.

Next, defendant contends that the trial court erred in failing to inquire into the reasons behind his motion to dismiss counsel and appoint effective counsel. We perceive no error.

A criminal defendant is guaranteed the right to reasonably effective assistance of counsel. People v. Norman, 703 P.2d 1261 (Colo.1985); Colo. Const. art. II, § 16.

If an indigent defendant voices objections to court-appointed counsel, the trial court has the obligation to inquire into the reasons for the dissatisfaction to determine whether substitution of counsel is warranted. If the defendant establishes "good cause" for dismissal, the court must provide substitute counsel. People v. Arguello, 772 P.2d 87 (Colo.1989).

Here, defendant alleged in his motion to dismiss counsel and appoint effective counsel that his court-appointed counsel had failed to interview witnesses and adequately research his defense, that a conflict of interest existed between him and his counsel, and that his counsel had failed to communicate with him concerning the status of the case.

Although disagreements as to strategy between the defendant and counsel ordinarily do not constitute ineffective assistance, see People v. Tackett, 742 P.2d 957 (Colo.App.1987), each of the allegations in defendant's motion, if established, would constitute "good cause" for substitution of counsel. See People v. Cole, 775 P.2d 551 (Colo.1...