People v. Campbell

• Decision Date: 26 September 2002
• Citation: 58 P.3d 1148
• Docket Number: 00CA1111
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dale E. CAMPBELL, Defendant-Appellant.
• Court: Colorado Court of Appeals

58 P.3d 1148

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Dale E. CAMPBELL, Defendant-Appellant.

No. 00CA1111.

Colorado Court of Appeals, Div. IV.

September 26, 2002.

Ken Salazar, Attorney General, Lauren Edelstein-Park, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Martin Gerra, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROTHENBERG.

Defendant, Dale E. Campbell, appeals the judgment of conviction entered on a jury verdict finding him guilty of one count of securities fraud and one count of theft. We reverse and remand for a new trial.

I. Background

Defendant was charged with several counts of theft and securities fraud related to a scheme in which he promoted a seminar featuring a nationally known motivational speaker. The counts involving one of the victims were severed and tried separately and are the subject of this appeal.

In April 1999, defendant retained counsel who filed several pretrial motions on defendant's behalf. That attorney requested and was granted two continuances of the motions hearing and the trial based on his assertions that he had inadequate time to prepare.

In December 1999, the attorney moved to withdraw based on a conflict of interest. The motion was granted without objection from the prosecutor, and shortly thereafter, defendant retained a second attorney. The court rescheduled the motions hearing for January 31, 2000, and the trial for March 13.

On January 24, a third attorney moved for a continuance of the motions hearing. On January 31, he appeared before the court and explained that he would be taking over defendant's representation because the second attorney had unexpectedly left their law firm. The third attorney did not formally move for a continuance of the trial date at that time, but informed the court there could be a preparation problem and that "if at the motions hearing ... the Court allows the prior transactions in, we are going to need more time [to prepare for trial] because I wasn't attorney of record for any of the other situations and some of them weren't even charged. So there is going to be a lot of investigation before then."

The prosecutor agreed to a continuance of the motions hearing, but objected to changing the trial date, contending defendant had a history of "engineering a conflict ... to get a continuance." The trial court continued the motions hearing to February 23.

On February 23, the third attorney again moved for a continuance of the motions hearing, stating he was unprepared to go forward. The prosecutor strenuously objected, contending it was a delay tactic by defendant. The court denied the motion, proceeded with the hearing, and granted the prosecution's request to introduce evidence of defendant's 1983 theft conviction and his 1995 securities fraud and theft convictions. The court ruled inadmissible other similar transaction evidence.

On March 3, the third attorney moved to withdraw. He informed the court defendant had discharged him three days earlier and "a conflict [had] arisen between himself and [defendant] that [rendered] his appearance in this matter as detrimental to [defendant]."

On the same date, defendant filed a detailed pro se motion requesting an evidentiary hearing to determine whether the third attorney had represented him ineffectively. Defendant alleged, inter alia, that: (1) he had not hired this attorney, but was simply told he was taking over defendant's case after the second attorney abandoned defendant's representation without giving him proper notice; (2) the third attorney was having personal problems including the recent death of a child, and the law firm was experiencing serious problems; (3) the attorney had been absent from his office for an unknown amount of time and failed to return defendant's phone calls; and (4) the attorney had little criminal law experience and was unprepared for the motions hearing. Defendant included with his motion a law directory profile the third attorney had sent to defendant, listing the attorney's "practice areas" as "Civil Litigation; Securities; Bankruptcy; Real Estate; [and] Corporate Collections."

The court held a brief hearing on the same day the motions were filed. The third attorney informed the court that defendant had terminated him and that he could no longer effectively represent defendant based on their lack of communication. After hearing the arguments of counsel and a brief statement by defendant, the court denied counsel's motion to withdraw and defendant's motion for an evidentiary hearing regarding ineffective assistance of counsel. The trial court stated:

[Defendant] and [the third attorney] appeared here on January 31, sought a continuance of the motions hearing that was set for that day and assured [the court] that [the defense] would be ready for trial on March 13th. And I think it was that day that [the prosecution] predicted that there would be something like this before the . . . trial date. And [defendant has] been back at least once since then for the motions hearing. Nothing was mentioned about [defendant] being dissatisfied [with the third attorney]. As a matter of fact, [the third attorney] succeeded in getting a severance of counts for the trial.... I don't see this as anything other than an effort to delay the trial.

Defendant and the third attorney continued to have difficulties communicating and on March 13, the attorney appeared before the court for trial and again moved to withdraw for the reasons previously stated. Defendant also addressed the court, advising it that he had fired the third attorney and "will have an attorney in this afternoon and will be finishing up on his appearance. [The fourth attorney] asked that I ask the Court for additional time . . . based on his entering his appearance."

Because of docket problems, the case was transferred to another district court judge for trial and for resolution of these matters. After being informed of the situation, the trial court denied the motions, stating: "I see you've made that motion before and it's been denied, so I'm not going to reconsider."

The third attorney then asked the court to advise defendant "of what his rights are ... and what is involved in his defense and possibly advise him of his availability to waive counsel." The court engaged in a brief colloquy with defendant during which defendant reiterated that, while he had hired the second attorney, he had not hired the third attorney. He also maintained that the third attorney was unprepared and was a civil attorney. Defendant insisted that he had fired the third attorney and said he had an appointment with another attorney that afternoon.

The third attorney made the following inquiry of the court: "Your Honor, if he wants to waive counsel, [do] I . . . have to appear [at the trial] and he can represent himself" (emphasis added). The court instructed the third attorney and defendant to return for trial on March 15.

On March 14, the third attorney filed a motion entitled "Reconsideration of Motion to Withdraw or, in the Alternative, Motion to Continue to Allow New Counsel to Enter His Appearance." In that motion, the third attorney asserted that "[b]ased upon the record to date, the defendant has waived his right to counsel" (emphasis added).

On March 15, when the parties and counsel appeared for trial, the court referred to the motion for reconsideration. The third attorney urged the court to reconsider its prior rulings, and advised it that the fourth attorney was willing to enter an appearance for defendant. Defendant also addressed the court personally and requested that the fourth attorney be permitted to represent him after a brief continuance. The prosecutor objected, and the trial court denied the motion to continue after being told the fourth attorney was not ready to proceed on that date.

The court then advised defendant pursuant to People v. Arguello, 772 P.2d 87 (Colo. 1989), of the charges against him, of his rights, and of the perils of self-representation. During the advisement, the third attorney took the position that, "if defendant is not cooperative with defense counsel and actually terminates defense counsel and says he's going to have new counsel for trial, in the event that new counsel becomes unavailable for trial, he's waived his right to counsel" (emphasis added).

Defendant responded orally to the court's questions, but refused to sign the written advisement form confirming that he waived counsel. Defendant stated: "I would like to go on record protesting signing this advisement at this time based on the fact that I I did not hire this lawyer, once again, and he's not my attorney."

The trial court asked defendant whether he wanted the third attorney to represent him or he wanted to represent himself, stating: "That's your choice in this trial." Defendant answered: "My choice is to have [the fourth attorney] . . . represent me." The court responded: "That is not an option if [the fourth attorney] won't try the case today. Now, there are two options: One, to go with [the third attorney]; or two, to represent yourself. So what is your choice?"

Defendant stated that he was not qualified to represent himself, that he wanted counsel but the third attorney was ineffective and could not represent him properly, and that he wanted the fourth attorney to represent him. During this colloquy, the third attorney asserted that "I think by his actions he's waiving counsel" (emphasis added).

When defendant refused to choose between proceeding to trial with the third attorney and self-representation, the court stated: "If you refuse to make the choice, I'll make the choice.... The only thing I know to do is you fired [the third attorney], so I'm going to allow him to withdraw, and you can represent yourself" (emphasis added).

Upon the suggestion of the...