People v. Harris

• Decision Date: 29 June 1995
• Docket Number: No. 93CA0963,93CA0963
• Citation: 914 P.2d 434
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrew G. HARRIS, Defendant-Appellant. . IV
• Court: Colorado Court of Appeals

Page 434

914 P.2d 434

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrew G. HARRIS, Defendant-Appellant.

No. 93CA0963.

Colorado Court of Appeals,

Div. IV.

June 29, 1995.

Rehearing Denied Aug. 3, 1995.

Certiorari Denied April 15, 1996.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Roger G. Billotte, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, State Public Defender, Frances S. Brown, Chief Appellate Deputy State Public Defender, Thomas K. Carberry, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, Andrew G. Harris, appeals from the judgments of conviction entered upon jury verdicts finding him guilty of two counts of aggravated robbery and five habitual offender counts. We affirm.

Defendant was charged with aggravated robbery of a fast food restaurant. He was identified by employees present during the robbery as the man who entered the restaurant with what appeared to be a gun in his pocket and took cash from the deposit bag and cash drawer.

I.

Defendant's first argument on appeal is that his right to a speedy trial was violated. We disagree.

There were numerous delays between the time defendant was charged and the commencement of trial on these charges. As pertinent to this appeal, however, defendant explicitly waived speedy trial on June 16, 1992. Defendant concedes that this waiver extended the speedy trial period until December 16, 1992.

On September 25, 1992, defendant filed a motion to dismiss. The trial court denied this motion on September 28, 1992, and defendant then pursued a petition for writ of prohibition, which the supreme court denied on October 9, 1992. Defendant was returned to court on October 16, 1992, and a new trial date was set for January 19, 1993.

The period of eleven days during which his petition for writ of prohibition was pending is excluded from the speedy trial period. See § 18-1-405(6)(b), C.R.S. (1994 Cum.Supp.). Accordingly, defendant argues that the prosecution therefore was required to bring him to trial no later than January 3, 1993, eleven days after the expiration of the previous speedy trial period.

Defendant, however, has ignored § 18-1-405(6)(h), C.R.S. (1994 Cum.Supp. 8B), which provides that: "The period of delay between the new date set for trial following the expiration of the time periods excluded by paragraphs (a), (b), (c), (d), and (f) of this subsection (6), not to exceed three months," is excluded from the speedy trial period.

Thus, the period of three months and eleven days was properly added to the previous speedy trial deadline of December 16, 1992. See People in Interest of N.P., 768 P.2d 706 (Colo.1989); cf. People v. Martin, 732 P.2d 1210 (Colo.1987) (reasonable period for rescheduling trial added to time excluded from speedy trial computation because of voluntary absence of defendant). The trial date of January 19, 1993, was well within that period.

II.

Defendant next contends that the trial court improperly allowed counsel to waive defendant's presence at a suppression hearing. We do not agree.

A defendant has the right to be present at every critical stage of a criminal trial including a suppression hearing. See People v. Vega, 870 P.2d 549 (Colo.App.1993). The right to be present at a suppression hearing, however, may be waived by the defendant if it appears that the ends of justice would not be frustrated thereby. See People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974).

At the start of the hearing at issue here, defense counsel waived defendant's presence. Later in the hearing, counsel indicated that he did so with defendant's consent in order to avoid influencing the restaurant employees' identification of defendant. Defendant argues, however, that he did not consent to waive his presence during argument on the suppression issue.

"Due process only requires that a defendant be allowed to be present to the extent that a fair and just hearing would be thwarted by his absence." Luu v. People, 841 P.2d 271, 275 (Colo.1992). A defendant must be able to show how his absence from the proceedings affected his ability to defend against the charges. People v. Vega, supra.

Here, even if we assume defendant did not consent, he has not demonstrated how the fundamental fairness of the trial was affected by his absence during the argument phase of the suppression hearing at which he was represented by counsel and at which purely legal issues were presented and argued. See Luu v. People, supra; People v. Vega, supra. We therefore conclude that any error in extending that waiver to include defendant's presence during argument on the issue was harmless beyond a reasonable doubt. See Luu v. People, supra.

III.

Defendant also contends that the trial court erred by failing to suppress the photo array identification of him as unduly suggestive. According to defendant, his photo was excessively distinctive in the array because only one other photo shows a man with a face as full as defendant's and this other man's hair was combed in a different style. We disagree.

The state is not required to produce exact replicas of the defendant for a photo array. People v. Bolton, 859 P.2d 311 (Colo.App.1993). To warrant suppression, the photo array must be suggestive to the point of making the identification unreliable as a matter of law. People v. Hollis, 43 Colo.App. 331, 605 P.2d 483 (1979).

A photo array is not unduly suggestive "if the photos are matched by race, approximate age, hair type, and a number of other characteristics." People v. Kemp, 885 P.2d 260, 263 (Colo.App.1994).

We agree with the trial court's determination that the photos used here were reasonably matched as to defendant's skin color, hair color and style, facial hair, age, and other physical characteristics and thus did not create a substantial possibility of misidentification. See People v. Ridenour, 878 P.2d 23 (Colo.App.1994).

IV.

Defendant next raises several contentions relating to the denial of his pro se motion to dismiss his court-appointed counsel. We perceive no reversible error in any of the issues raised.

A.

First, we reject defendant's argument that the trial court erred by failing to inform him of the constitutional right to self-representation.

Before ordering a change of court-appointed counsel, a trial court must inquire as to the reasons for the defendant's dissatisfaction. Such inquiry is necessary in order to verify that the defendant has a well-founded basis to believe that counsel cannot, or will not, competently represent him. People v. Arguello, 772 P.2d 87 (Colo.1989).

According to defendant, under Arguello, in the event the trial court determines that substitution of counsel is not warranted, it must advise the defendant that he has a choice between proceeding with present counsel and proceeding pro se. We do not agree. We do not consider Arguello as requiring such an advisement. Neither do we agree with defendant that such a requirement should be established in order properly to preserve a defendant's right to self-representation.

1.

Arguello and subsequent cases make clear that, when an indigent defendant refuses without good cause to proceed with representation by a competent court-appointed attorney, a voluntary, albeit implied, waiver of the right to counsel has occurred. See People v. Rocha, 872 P.2d 1285 (Colo.App.1993); People v. Haynie, 826 P.2d 371 (Colo.App.1991).

In People v. Arguello, supra, 772 P.2d at 94, the supreme court concluded that:

Once [a trial court] appropriately has determined that a substitution of counsel is not warranted, the court can insist that the defendant choose between continued representation by existing counsel and appearing pro se. In this context, a defendant must be given "a clear choice" between present counsel and waiver of counsel. A defendant who then refuses without good cause to proceed with able appointed counsel has effected a "voluntary" waiver.

Accordingly, under certain circumstances, a trial court may insist that a defendant choose either to waive the right to counsel or to accept continued representation by court-appointed counsel. No such waiver will be considered voluntary, however, unless the defendant is afforded this "clear choice" between the two options. See People v. Arguello, supra.

The Arguello court was not concerned, however, with determining whether the right to self-representation, as opposed to the right to counsel, had been voluntarily waived. Under the facts of that case and those of its progeny, the defendants chose to proceed pro se but were arguing on appeal that this choice was not voluntary. Protection of the right to self-representation was simply not at issue. See People v. Rocha, supra; People v. Haynie, supra.

Therefore, we do not read Arguello as imposing an additional duty on the trial court formally to advise a defendant of his right to self-representation simply because he has moved to dismiss court-appointed counsel without good reason.

Here, the record reflects that defendant did not refuse to proceed with present counsel after the trial court denied his motion to dismiss. Defendant here consistently asserted that he wanted, and needed, representation. The trial court was never presented with a request for self-representation and, thus, could not and did not interfere with defendant's exercise of that right. See People v. Davis, 851 P.2d 239 (Colo.App.1993).

2.

Defendant argues, however, that even if Arguello does not hold so explicitly, we must infer such a duty on the part of the trial court because the right to self-representation is constitutionally guaranteed and a defendant must know of his rights before he can knowingly and intelligently waive them. We do not agree.

Before a trial court may allow a defendant to waive his constitutional right to counsel and proceed pro se, the...