People v. Jenkins, 01CA1336.

• Decision Date: 27 February 2003
• Docket Number: No. 01CA1336.,01CA1336.
• Citation: 83 P.3d 1122
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Haywood JENKINS, Defendant-Appellant.
• Court: Colorado Court of Appeals

83 P.3d 1122

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Haywood JENKINS, Defendant-Appellant.

No. 01CA1336.

Colorado Court of Appeals, Div. IV.

February 27, 2003.

As Modified on Denial of Rehearing May 15, 2003.

Certiorari Denied January 26, 2004.

Ken Salazar, Attorney General, Patricia R. Van Horn, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

James Grimaldi, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, Haywood Jenkins, appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempted murder and first degree assault. He also appeals his habitual criminal adjudication and sentence. We affirm.

According to the prosecution's evidence, shortly after moving in with the victim and her children, defendant began abusing the victim both mentally and physically. One night, after the victim refused to perform oral sex, defendant poured gin mixed with rubbing alcohol on her and set her on fire. Although the victim was seriously burned, defendant kept her in her room, prevented her from seeking medical attention and from having contact with her children, and repeatedly threatened to kill her. After six days, defendant finally relented and drove her to a hospital, instructing her to report that she had been injured in a cooking fire. He told her he would be home alone with her children and would kill them if she told anyone the truth about what had happened.

The victim told hospital personnel she had been injured in a grease fire. When pressed for details, however, she either stopped talking or gave inconsistent accounts. After about two weeks of treatment, the victim was released from the hospital. She remained bedridden for about a year.

Eventually, the victim reported the incident.

I.

Defendant contends that the trial court's denial of his pro se motion for substitution of counsel violated his due process right to assistance of counsel. We disagree.

A defendant's motion to discharge an attorney is addressed to the sound discretion of the trial court, and its ruling will not be disturbed on review absent an abuse of discretion. People v. Apodaca, 998 P.2d 25 (Colo.App.1999).

An indigent defendant is entitled to effective appointed counsel, but is not entitled to new counsel of his or her choice. Further, a defendant must demonstrate good cause to require substitution of counsel. People v. Fisher, 9 P.3d 1189 (Colo.App. 2000).

When an indigent defendant moves to discharge counsel, the trial court must inquire into the reasons for the dissatisfaction. People v. Apodaca, supra.

Before change of counsel is warranted, the court must determine that the defendant has some well-founded reason for believing that the appointed attorney cannot or will not completely represent him or her. If the defendant establishes good cause, such as a conflict of interest or a complete breakdown of communication, the court must appoint substitute counsel. People v. Arguello, 772 P.2d 87 (Colo.1989). Conversely, if the court has a reasonable basis for concluding the attorney-client relationship has not so deteriorated that counsel could not provide effective assistance, the court can properly refuse to appoint new counsel. People v. Apodaca, supra.

Here, prior to trial, defendant filed a motion to dismiss his counsel and for appointment of alternative counsel. Defendant argued that his counsel was not defending him zealously and had not spent adequate time with him to obtain the details and information necessary to investigate possible defenses. Specifically, defendant asserted that his attorney met with him only once in nine months, had not discussed potential witnesses, and had not given him copies of discovery, which he said he needed to review to help plan trial strategy.

The court held a hearing on defendant's motion. At the hearing, defendant stated, "I just would like to have something done in my favor, you know? I have been sitting there and never even talked to anybody and stuff, all the way to January 3. He said he would get on it and check and subpoena some things for the record and stuff like that."

The court denied the motion, noting that defendant was not claiming a conflict of interest, but instead asserting that counsel's preparation for trial had been inadequate. The court stated that it was familiar with counsel's experience, expertise, and thoroughness and was satisfied with counsel's "professionalism, expertise, and zeal."

The record indicates that the court did not make any further inquiry as to defendant's stated concerns, nor did it ask for any response by counsel. The court appeared to base its denial of the request on its assessment of defense counsel's general expertise and zeal, rather than on counsel's level of performance in this specific representation. We read People v. Arguello, supra,

as contemplating a more fact-specific inquiry than that conducted by the trial court here.

Nevertheless, the record substantiates the court's conclusions that defendant was not asserting a conflict of interest and that he had not shown a complete breakdown of communication. Nor had he shown any prejudice from counsel's failure to take specific steps in the representation.

Under the circumstances, we therefore find no abuse of discretion by the trial court in denying defendant's motion for substitute counsel.

II.

Defendant next contends that the trial court violated his right to due process and a fair jury trial by allowing an expert witness to express opinions outside the scope of his field of expertise. We disagree.

Trial courts have broad discretion in determining the admissibility of expert testimony pursuant to CRE 702, and the exercise of this discretion will not be overturned absent manifest error. Lanari v. People, 827 P.2d 495 (Colo.1992).

CRE 702 governs the trial court's determination regarding the admissibility of expert testimony. The court's inquiry should focus on whether the proffered evidence is both relevant and reliable. The court must determine the reliability of the principles underlying the expert's opinion, the qualifications of the witness, and the usefulness of the testimony to the jury. People v. Shreck, 22 P.3d 68 (Colo.2001).

Here, the physician who treated the victim's burns was accepted by the court as an expert witness in the area of general surgery and as a critical care physician "having to do with burn care."

During his testimony, the witness stated that the victim's burns were inconsistent with the type of burns she would have received from a grease fire or a pressure cooker.

The witness also testified that the pattern of the victim's burns indicated that her back had been resting against something and been protected from the flames. He then stated that the burn pattern was consistent with the prosecution's scenario that when rubbing alcohol was poured on the victim's body and lighted, she had been sitting in bed, with her back against the wall, wearing a nightgown and a pair of underpants with an elastic waist.

This testimony was properly admitted under CRE 702. The witness had extensive knowledge and experience with burns and burn patients. He had participated in a study of fabric inflammability involving analysis of differing burn patterns on various types of clothing. His education, experience, and knowledge as a physician studying burns and treating burn victims allowed him to give specialized testimony that would assist the jury in understanding the physical evidence concerning the burns and in assessing whether that evidence was consistent with the other evidence and the parties' theories of the case.

While the witness acknowledged that, without extrinsic information, he could not determine what the victim had been wearing, such an acknowledgment goes to the weight rather than the admissibility of the testimony.

We thus find no error.

III.

Defendant next contends that the trial court erred in allowing a psychologist to testify concerning the credibility of the victim and to base her opinion testimony on the criminal charges filed against defendant. We reject the contention.

An expert may not give opinion testimony as to whether a witness is telling the truth on a specific occasion. People v. Lafferty, 9 P.3d 1132 (Colo.App.1999). However, under CRE 702, an expert may testify concerning whether the victim's behavior or demeanor is consistent with that of typical victims of abuse. People v. Fasy, 829 P.2d 1314 (Colo.1992). Further, an expert witness may base an opinion on facts or data perceived by or made known to him or her at or before the hearing. CRE 703.

Here, the psychologist who provided counseling to the victim at the hospital was received by the court as an expert in psychology and psychological treatment of those suffering from trauma, particularly trauma from burns. The psychologist testified that the victim had seemed fearful and very quiet, refusing to discuss any details of the events. She testified that she found it very unusual for a burn patient—especially one with such serious and painful burns—to wait six days to come in for treatment and that it was also unusual for burn patients not to want to talk about their injuries. The psychologist also stated that although the victim was having a very hard time with pain, she would not cooperate at all in learning how to manage her pain better.

The psychologist testified that when she treated the victim, she did not believe the injuries resulted from an assault. However, she felt there was "something [the victim] wasn't telling us." She further testified she had treated between fifteen and twenty patients who received their burns as the result of an assault. According to her, such patients generally did not feel safe and had more problems managing pain than non-assault burn victims, because the pain was a constant reminder of what someone had done to them.

She then opined that the victim's...