People v. Davis

• Decision Date: 05 January 2012
• Docket Number: No. 07CA1955.,07CA1955.
• Citation: 412 P.3d 376
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Rashaim Malique DAVIS, Defendant–Appellant.
• Court: Colorado Court of Appeals

412 P.3d 376

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

v.Rashaim Malique DAVIS, Defendant–Appellant.

No. 07CA1955.

Colorado Court of Appeals, Div. VII.

Jan. 5, 2012.

John W. Suthers, Attorney General, Matthew Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Lynn Noesner, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge BERNARD.

¶ 1 This appeal analyzes four issues. The first concerns the intersection of mental illness and the right of defendants in criminal cases to represent themselves in trials, such as the one that was held in this case. On the one hand, the Fifth Amendment's Due Process Clause dictates that defendants who are so mentally ill that they do not understand the proceedings or are unable to assist their attorneys are incompetent to stand trial. On the other hand, defendants have a constitutional right, under the Sixth and Fourteenth Amendments, to waive their right to counsel and act as their own attorneys at trial.

¶ 2 We address here a sort of "gray area" found at this intersection. If defendants suffering from mental illness are competent to stand trial, must courts always honor their election to waive their right to counsel? Or, may courts consider how defendants' mental illness might adversely affect their performance during their trials? Relying on Indiana v. Edwards, 554 U.S. 164, 171, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), we conclude that courts may deny such requests made by defendants who are competent to stand trial, but whose mental illness renders them mentally incompetent to conduct their trials by themselves. In reaching this result, we are careful to point out that the Constitution does not mandate this result; it merely permits it. People v. Wilson, 397 P.3d 1090, –––– (Colo.App.2011).

¶ 3 The second and third issues also arise out of the trial that was held in this case. Did the trial court make adequate inquiries into defendant's allegations that his trial counsel was ineffective and labored under a conflict of interest? We conclude that it did. And is defendant's conviction at trial for possession of a controlled substance barred by double jeopardy principles because defendant was also convicted of distribution of a controlled substance? We conclude that it is not.

¶ 4 The fourth issue considers to whom the decision to withdraw a guilty plea rightfully belongs. Is it the defendant's decision, because the decision to plead guilty is the defendant's? Or, is it trial counsel's decision because it involves the sorts of strategic decisions normally reserved to counsel? We conclude that the decision to ask a court to withdraw a guilty plea is the defendant's. Defense counsel is obligated to advise the defendant about the consequences of such a decision, but the defendant should have the last word.

¶ 5 As a result of these conclusions, we remand the case for further proceedings on (1) the judgments of conviction of defendant, Rashaim Malique Davis, for possession and distribution of a controlled substance entered after a jury verdict in case 06CR10189; and (2) the judgments of conviction for two counts of possession of more than one gram of a controlled substance entered as a result of guilty pleas in cases 05CR1486 and 05CR3846.

I. Background

A. Charges

¶ 6 Defendant was charged with seven felony drug offenses in three separate cases, which are all the subject of this appeal.

¶ 7 In the first case, number 06CR10189, defendant was charged with possession and distribution of a schedule II controlled substance. He proceeded to trial and a jury found him guilty on both counts.

¶ 8 In the second case, 05CR1486, defendant was charged with possession of more than one gram of a schedule II controlled substance, a class four felony, and possession with intent to distribute a schedule II controlled substance, a class three felony. In the third case, 05CR3846, defendant was charged with two counts of possession of more than one gram of a schedule II controlled substance and one count of possession with intent to distribute a schedule II controlled substance. As a result of a plea agreement, defendant pled guilty to one count of possession of more than one gram of a controlled substance in each case. The prosecution dismissed the other charges and agreed not to file habitual criminal charges.

B. Defendant's Conduct

¶ 9 In the first case, 06CR10189, defendant was originally represented by an attorney from the public defender's office. Defendant threatened to harm this attorney, who took the threats seriously. In response to the threats, a female investigator from the public defender's office met with defendant and asked him if he would participate in some "mini-exams." Defendant declined, and warned the investigator that "when [he is] uncomfortable he feels the need to hit people and he might have to hit [her]."

¶ 10 The public defender asked the court to allow him to withdraw from representing defendant. He told the court that defendant's threats were "a result of the fact that [he] feels that ... all the lawyers involved in this case [and the investigator] ... [are] out to do something bad to him."

¶ 11 The court allowed the public defender to withdraw and appointed substitute trial counsel to represent defendant.

¶ 12 Defendant's competence to proceed was called into question repeatedly before his trial. The issue was originally raised by the public defender. That attorney stated that his experience "throughout the proceedings" had been that defendant "exhibit[ed] [a] flat affect, bordering on catatonic," and would not discuss the case with him. Defendant had also refused to communicate with the attorney who represented him on the second and third cases, 05CR1486 and 05CR3846.

¶ 13 The trial court ordered a competency evaluation. The court also advised defendant that he had a right not to speak to the examining psychiatrist, but that his refusal to do so could be considered in determining whether he was competent.

¶ 14 The record contains reports from three competency evaluations. Defendant refused to participate in any of them. The first evaluator reported that defendant was "very reserved and watchful" during their brief encounter, and noted that his medical chart indicated that he suffered from "chronic bi-polar [disorder] and depression."

¶ 15 The second evaluator reported that defendant sat "expressionless and silent" for approximately ten minutes while the evaluator attempted to encourage his participation, and then defendant left the interview room to return to his cell. The evaluator further stated:

Although it is my understanding that the default position when a criminal defendant refuses to participate in a Competence to Proceed evaluation is to assume the defendant is competent; it is possible that [defendant's] declination to participate in the present evaluation was symptomatic of paranoid schizophrenia

or some other mental disease or defect. It is equally possible that his refusal was based on rational reasons.

¶ 16 The third evaluator met with defendant for approximately ten minutes. He told the evaluator that he did not know or understand why he was in custody or what the purpose of the evaluation was, even after the evaluator provided an explanation. He refused to answer most of the evaluator's questions and stated, "Whenever I feel uncomfortable, I react." When questioned about the nature of that reaction, he reported that he leaves, and then he left the room.

¶ 17 The third evaluator concluded that defendant was "competent to proceed and was refusing to participate ... because of a desire to not be cooperative with the legal process." She also reported, however, that his medical records showed he had been diagnosed with attention deficit/hyperactivity disorder and post-traumatic stress

disorder in childhood and with depressive disorder by jail medical staff. He had been prescribed medication for depressive disorder, but had complained that it was not working and had apparently stopped taking it.

¶ 18 The trial court ultimately determined that defendant was competent to proceed.

¶ 19 Defendant then told the court that he wished to waive his right to counsel and represent himself at trial in the first case, 06CR10189. The court asked substitute trial counsel whether she thought defendant could do so. She replied that she thought he was competent, but she added, "I think it would be very ill-advised for [defendant] to proceed pro se but that's all I really have to add."

¶ 20 The court carefully advised defendant of his right to represent himself and the risks associated with self-representation. After reviewing the various competency reports, the court found that defendant suffered from "psychiatric issues" that warranted denying this request.

¶ 21 The trial court repeatedly expressed concern that defendant's desire to dismiss his attorney was the product of paranoid thinking. Defendant admitted that he was taking medication for bipolar disorder

and paranoia, and that the medication was not entirely effective. He further acknowledged that the paranoia had caused him not to trust the public defender's office, and that he did not remember a time when he did not have paranoia.

¶ 22 On one occasion, defendant became angry and refused to respond to the trial court's questions when it attempted to address his request for self-representation. At the next hearing, the trial court stated:

[T]here's a big difference it seems to me between being competent which is about the lowest level of functionality and being competent enough to knowingly, voluntarily and intelligently waive your right to counsel and I just need to have some assurance that [defendant] isn't in that big area between competence and an ability to knowingly, voluntarily and intelligently waive his right to counsel.

I have to say that when I've had interchanges with [defendant], he seems articulate. He—I

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