People v. Brown

• Decision Date: 31 March 2011
• Docket Number: No. 06CA1751.,06CA1751.
• Citation: 328 P.3d 187
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Eric Lamont BROWN, Defendant–Appellant.
• Court: Colorado Court of Appeals

328 P.3d 187

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Eric Lamont BROWN, Defendant–Appellant.

No. 06CA1751.

Colorado Court of Appeals, Div. V.

March 31, 2011.

John W. Suthers, Attorney General, Jennifer L. Ward, Assistant Attorney General, Denver, CO, for Plaintiff–Appellee.

Stinson Law Office, Jenifer Stinson, Denver, CO, for Defendant–Appellant.

Opinion by Judge WEBB.

This direct appeal presents the difficult question of balancing efficient judicial administration against delay when a criminal defendant exercises his Sixth Amendment right to replace appointed counsel with retained counsel and seeks to continue the trial on that basis. Although denying a continuance is within the trial court's discretion, here the court's findings do not show that it adequately considered the right of defendant, Eric Lamont Brown, to counsel of his choosing when it refused to continue the trial to afford his newly-retained counsel time to prepare. Because we conclude that the court thereby violated Brown's Sixth Amendment right, we must reverse the judgment of conviction¹ and remand for retrial.²

I. Background

After Brown was arrested in March 2005, the trial court appointed a public defender to represent him. In September, Brown requested that his trial be continued because tests from the Colorado Bureau of Investigation had not been completed. The prosecutor responded that she also “need[ed] additional time before [the] case goes to trial.” After being reset for December, the trial was again continued, this time at the prosecutor's request because the victim was unavailable. The court reset the trial for January 10, 2006, but it was continued a third time at defendant's request because the court granted the prosecutor's motion to reconsider an earlier ruling and allowed the prosecutor to introduce very significant CRE 404(b) evidence. The trial was reset for February 14, 2006.

On February 2, 2006, newly-retained counsel entered an appearance for Brown and sought a continuance to prepare for trial. The motion recited that Brown was willing to waive speedy trial. At the hearing on the motion, retained counsel explained that when he had been contacted by Brown's family in December:

I told them what my retainer was going to be to get started on a case of this magnitude, and they said they were going to work towards doing that.

He also informed the court that Brown “wished to hire private counsel” and explained:

I do not believe he's doing this for any purpose of delay, or anything like that ... it's just been a matter of getting the retainer put together.

...

I have ordered the discovery ... I have an investigator ready to go. I'm prepared to jump into this case and work on it, and my understanding is Mr. Brown and his family would like me to represent him.

The prosecutor objected to the continuance because the victim and the CRE 404(b) witness had been subpoenaed “three times before.” ³ The public defender offered that she was prepared for trial on February 14th.

The court acknowledged that although the January continuance had been requested by Brown: “I'm not sure that [it] can necessarily be qualified as a defense request since it was based on my ruling and based on a motion that the People filed.” Nevertheless, the court told the parties that it was “not inclined to continue [the] case” because:

It's been continued several times; we've got a number of witnesses subpoenaed; [the public defender] is ready to proceed; and, you know, I have no doubt that [the public defender] will do a very competent job representing Mr. Brown.

The court then said that “absent some other reason that I have not been told, I am not going to continue the trial in this case.”

Following a brief hearing before a different judge on whether defendant had a conflict with his public defender,⁴ the parties returned to the trial court and retained counsel withdrew his entry of appearance. He explained: “I would not be ready for trial. I would simply be ineffective, and I don't want to waste anybody else's time.” The case went to trial as scheduled, with Brown represented by the public defender.

II. Right to Choice of Counsel

Two competing principles must be reconciled to decide this case.

On the one hand, “[t]he freedom of a defendant to choose his own counsel is central to our adversarial judicial system.” People v. Maestas, 199 P.3d 713, 716 (Colo.2009). Thus, “[i]t long has been recognized that ‘an accused who desires and is financially able should be afforded a fair opportunity to secure counsel of his own choice.’ ” Anaya v. People, 764 P.2d 779, 781 (Colo.1988) (quoting Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932)).

On the other hand, although the “Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to be represented by counsel of his choice,” Maestas, 199 P.3d at 716, it does not “guarantee an absolute right to counsel of choice in all cases.” Rodriguez v. Dist. Court, 719 P.2d 699, 706 (Colo.1986). Thus, “a defendant cannot utilize his right to counsel of choice for improper purposes, such as attempting to delay proceedings or to impede the efficient administration of justice.” Maestas, 199 P.3d at 717 (internal citation omitted); cf. People v. Munsey, 232 P.3d 113, 126–27 (Colo.App.2009) (a defendant “is free to discharge his or her retained counsel without having to show cause ... so long as the discharge or request is not made for improper purposes and does not significantly disrupt judicial proceedings”).

Reconciling these principles where the defendant seeks a continuance is within the sound discretion of the trial court, and its decision will not be overturned absent a showing of an abuse of discretion. People v. Scales, 763 P.2d 1045, 1048 (Colo.1988). “There are no mechanical tests for determining whether the denial of a continuance” constitutes an abuse of discretion. People v. Hampton, 758 P.2d 1344, 1353 (Colo.1988). Rather, “[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Id. at 1353–54 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). Despite many Colorado cases recognizing this power,⁵ the parties cite no decision, nor have we found one, involving a continuance to replace appointed counsel, with whom the defendant does not have a conflict, with counsel who has been retained shortly before trial.

III. Abuse of Discretion

Other jurisdictions review for abuse of discretion in this setting by first recognizing the qualified nature of the right at issue: a “defendant's right to choice of counsel must not obstruct orderly judicial procedure or deprive courts of their inherent power to control the administration of justice.” United States v. Cordy, 560 F.3d 808, 815 (8th Cir.2009); see United States v. Rundle, 409 F.2d 1210, 1214 (3d Cir.1969) ( “To permit a continuance to accommodate one defendant may in itself prejudice the rights of another defendant whose trial is delayed because of the continuance.”); Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.1978) (“A defendant cannot assume that the right to choose counsel affords the right to obtain a delay at his whim and caprice, or to obtain a reversal because he was unable to frustrate justice.”) (internal citation omitted).

But similar cases also recognize that these considerations cannot alone override a defendant's Sixth Amendment rights. See United States v. Rankin, 779 F.2d 956, 960 (3d Cir.1986) (“a rigid insistence on expedition in the face of a justifiable request for delay can amount to a constitutional violation”); United States v. Hughey, 147 F.3d 423, 433 (5th Cir.1998) (disclaiming “any general rule that would routinely place a district court's generalized need to proceed promptly in a superior position to defense counsel's legitimate scheduling conflicts”); Linton v. Perini, 656 F.2d 207, 209 (6th Cir.1981) (“a trial court, acting in the name of calendar control, cannot arbitrarily and unreasonably interfere with a client's right to be represented by the attorney he has selected”).

To resolve this conflict, a court “must carefully balance the defendant's right to be represented by the counsel of his choice against the court's interest in ‘the orderly administration of justice.’ ” United States v. Gonzalez–Lopez, 399 F.3d 924, 929 (8th Cir.2005) (quoting Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir.1984)), aff'd,548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006).

We examine whether the trial court properly did so here by comparing the factors that it considered with factors used by other courts, which it failed to address. Cf. People v. Bakari, 780 P.2d 1089, 1092–93 (Colo.1989) (court abused its discretion when it denied continuance without considering “the harsh consequences of dismissal, the public interest in prompt disposition of the case, and the available alternatives”). In denying Brown's motion, the court noted factors that reflect “the efficient and effective administration of criminal justice.” United States v. Kikumura, 947 F.2d 72, 78–79 (3d Cir.1991). But the findings do not show adequate consideration of other factors relevant to Brown's right to counsel of his choice, such as the following.

A. Dilatory or Contrived Motive

The trial court did not make any findings on whether Brown was properly exercising his right to choose counsel, as opposed to attempting “to manipulate the court's schedule by a last minute switch of attorneys or selection of an unavailable attorney.” Gandy, 569 F.2d at 1328; see People v. Espinoza, 195 Colo. 127, 129, 575 P.2d 851, 853 (1978) (court abused its discretion in denying continuance where there was “no allegation that the district attorney's actions were intended to delay the proceedings unnecessarily”).⁶

Further, the record suggests that Brown's motive was not dilatory or...