People v. Faussett
Decision Date | 16 June 2016 |
Docket Number | Court of Appeals No. 15CA0278 |
Citation | 409 P.3d 477 |
Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Wesley FAUSSETT, Defendant–Appellant. |
Court | Colorado Court of Appeals |
Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee
Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado, for Defendant–Appellant
Opinion by JUDGE DAILEY
¶ 1 Defendant, Wesley Faussett, appeals the judgment of conviction entered on a jury verdict finding him guilty of aggravated motor vehicle theft in the first degree. We affirm.
¶ 2 Defendant's conviction arose out of a theft of a Honda PCX150 scooter from a residential parking lot.
¶ 3 Four days after the scooter was reported missing, police located a stolen pickup truck parked outside an apartment complex. With the use of GPS surveillance technology, they were able to follow the pickup and the individual operating it (the driver) as he drove the pickup to various places, including a storage unit, and ultimately arrested him.
¶ 4 Later, police discovered that the driver was "possibly involved" with the disappearance of other vehicles besides the pickup. While in custody, the driver made several phone calls to defendant and the driver's girlfriend (the girlfriend). During these calls—which were monitored by the police—the driver talked to both defendant and the girlfriend about disposing of or selling the "bike" or "scooter."
¶ 5 Defendant was arrested for his involvement in the scooter's theft. At trial, the prosecution presented the following evidence:
¶ 6 Defendant presented no witnesses or evidence on his behalf; he asserted, however, that the prosecution's case against him was merely "[s]peculation, conjecture, [and] surmise."
¶ 7 The jury found defendant guilty as charged, and the trial court sentenced him to six years in the custody of the Department of Corrections and three years' parole.
¶ 8 Defendant first contends that the trial court erred in denying his motion for a continuance. We disagree.
¶ 9 A week before trial, defense counsel moved for a continuance, as pertinent here, on two grounds: (1) the prosecutor had re-interviewed the girlfriend and defense counsel wished to review a written report of the interview, once it had been completed; and (2) defense counsel had never met defendant outside of court to discuss the trial, and defendant had just that morning "mentioned additional witnesses that should be interviewed and possibly subpoenaed."1
¶ 10 The prosecution responded that it "did have conversations with the [girlfriend] ... [b]ut it is consistent with what's in discovery" and not "anything exculpatory or really ground shattering...." On defendant's other ground, the prosecution did not comment.
¶ 11 The trial court ultimately denied defendant's motion for a continuance. First, it noted that, without any indication that the girlfriend had said something "relevant and important" to the prosecution, "the other side [does not] automatically get[ ] a chance to continue the matter" just because the prosecution re-interviewed her. Concerning "defendant's noncooperation," the trial court stated,
¶ 12 We review a trial court's denial of a motion for a continuance for an abuse of discretion. See People v. Alley , 232 P.3d 272, 274 (Colo. App. 2010). "A trial court abuses its discretion in denying a motion to continue if, under the totality of the circumstances, its ruling is manifestly arbitrary, unreasonable, or unfair." People v. Smith , 275 P.3d 715, 721 (Colo. App. 2011) (quoting People v. Mandez , 997 P.2d 1254, 1265 (Colo. App. 1999) ).
¶ 13 People v. Roybal , 55 P.3d 144, 150 (Colo. App. 2001). To obtain a reversal, a defendant must also show he or she was actually prejudiced by the denial of the continuance. Alley , 232 P.3d at 274.
¶ 14 Here, we perceive no abuse of discretion or prejudicial error committed by the trial court.
¶ 15 With respect to defendant's first ground for requesting a continuance, there was no suggestion either at the time or later, when the defense received a written report of the prosecution's interview of the girlfriend, that she had said anything new or different from what she had previously said. See People v. Rivers , 727 P.2d 394, 399 (Colo. App. 1986) (). Indeed, defense counsel notified the court that she "had an opportunity to speak at length" with the prosecution about the content of the interview. And, during cross-examination, defense counsel specifically referenced the additional interview and questioned the girlfriend about particular statements she made to the prosecution at that time. Thus, we are not persuaded by defendant's assertion on appeal that "in order to adequately prepare for trial and to cross-examine [the girlfriend], the continuance was necessary."
¶ 16 With respect to defendant's other ground for requesting a continuance, as we read the record, any lack of communication between him and his counsel was the result of defendant's own actions,2 for which the court need not grant a continuance. See Johnson v. People , 172 Colo. 72, 80, 470 P.2d 37, 42 (1970) ( ); People in Interest of J.T. , 13 P.3d 321, 322 (Colo. App. 2000) ( ); see also People v. Jenkins , 22 Cal.4th 900, 95 Cal.Rptr.2d 377, 997 P.2d 1044, 1138 (2000) ( ).
¶ 17 Further, the defense made no offer of proof regarding what substantive testimony defendant expected from the additional witnesses, let alone who they were. See United States v. Johnson , 977 F.2d 1360, 1366 (10th Cir. 1992) ; cf. People in Interest of N.F. , 820 P.2d 1128, 1133 (Colo. App. 1991) ( ).
¶ 18 Under these circumstances, we perceive no error in the court's exercise of discretion to deny a continuance on these grounds.
¶ 19 Defendant contends that "the trial court erred in failing to conduct an adequate inquiry [into the deteriorated relationship between him and his counsel] and further, should have appointed conflict-free counsel to represent [him]." We are not persuaded.
¶ 20 "When a defendant objects to court-appointed counsel, the trial court must inquire into the reasons for the [defendant's] dissatisfaction." People v. Kelling , 151 P.3d 650, 653 (Colo. App. 2006). If the defendant establishes good cause (e.g., a complete breakdown in communication, a conflict of interest, or an irreconcilable conflict that could lead to an apparently unjust verdict), the court must appoint substitute counsel. Id. However, before the substitution of counsel is warranted, the court must confirm that the defendant has "some well[-]founded reason for believing that the appointed attorney cannot or will not competently represent him." Id. (quoting 3 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 11.4(b), at 555 (2d ed. 1999)).
¶ 21 Here, defendant asserts that a substitution of counsel was warranted by a conflict of interest that he had with his appointed counsel. But before the trial court, defendant did not move for a...
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