People v. Monroe, 94CA0359

• Decision Date: 18 May 1995
• Docket Number: No. 94CA0359,94CA0359
• Citation: 907 P.2d 690
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Derrek L. MONROE, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 690

907 P.2d 690

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Derrek L. MONROE, Defendant-Appellant.

No. 94CA0359.

Colorado Court of Appeals Div. II.

May 18, 1995.

Rehearing Denied June 22, 1995.

Certiorari Denied Dec. 4, 1995.

Cross-Petition for Certiorari Granted

Dec. 4, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Maureen Phelan, Sp. Asst. Atty. Gen., Denver, for plaintiff-appellee.

Patrick J. Mulligan, Denver, for defendant-appellant.

Opinion by Judge CRISWELL.

Defendant, Derrek L. Monroe, appeals the judgment of conviction entered upon jury verdicts finding him guilty of numerous felonies. We affirm.

Defendant was present at a basketball game in a public park, which culminated in a personal confrontation among some of the players. After this confrontation appeared to end, an individual, later identified as defendant, went to his car, produced an automatic weapon, and fired it at members of the opposing team, severely wounding three of them. When later arrested, defendant gave the police a false name and a forged driver's license.

Upon defendant being charged as a result of this incident, a public defender was appointed to represent him, but before defendant's first scheduled trial date, his counsel was allowed to withdraw. That counsel had previously represented a witness endorsed by the People and explained to the court that "an irreconcilable conflict" had arisen. Defendant did not object to his withdrawal.

Replacement counsel was appointed, and trial was rescheduled for a date which coincided with the end of the six-month speedy trial period. Defendant's new counsel stated, however, that he could not be prepared for trial by the scheduled date. Defendant was then offered the choice of accepting new counsel and waiving his right to a speedy trial or proceeding pro se; defendant initially chose the latter. Just before commencement of trial, however, defendant reconsidered and elected to be represented by counsel, and the trial date was continued.

Defendant was eventually convicted of four counts of attempted first degree murder, three counts of first degree assault, one count of second degree assault, one count of second degree forgery, and one count of criminal impersonation.

I.

Defendant first contends that the trial court erred in allowing his first appointed counsel to withdraw, thereby depriving him of his right to counsel of his choice and his right to a speedy trial. We disagree.

Approximately two weeks before the date scheduled for trial, the public defender who had been assigned to represent defendant appeared before the court and requested that he be allowed to withdraw from further representation. As grounds for such request, he stated that a witness who had been endorsed by the People had previously been represented by the same public defender's office. Counsel said that, initially, he believed that there was no "strong conflict." He also noted, however, that the same investigator had been used by the public defender in both instances, and as a result of the information gained through the prior representation of the prospective witness and the services of the investigator, an "irreconcilable difference" with defendant had arisen.

In response to the People's suggestion that they might decide not to call the witness previously represented, defense counsel said:

They cannot force us to commit an unethical act. In essence, they would be conspiring to commit an unethical act, and I don't think that's appropriate.... I cannot enforce [expand upon?] the statement that there's a conflict of this type occurring as an ongoing conflict. Once [the witness in question] was endorsed and information was brought to our attention that created a conflict, that cannot now be dismissed. Whether or not she's called on, the information is out there, and we do have substantial information. That creates a problem.

Defendant did not object to counsel's withdrawal, and based on the foregoing representations, the trial court granted the request to withdraw and appointed new counsel for defendant. This ultimately led to a continuance of the trial date beyond the period set by statute for bringing a defendant to trial.

A.

Defendant first contends that the trial court deprived him of his Sixth Amendment right to counsel of his choice. We disagree.

Because he did not object to counsel's withdrawal, defendant is now constrained to argue that, because he had the right to waive the right to conflict-free representation, see Tyson v. District Court, 891 P.2d 984 (Colo.1995), he also had the right to be informed of this right and that the trial court's failure so to inform him effectively deprived him of his right to counsel of his choice.

Any putative right to be advised of the right to object to the withdrawal of counsel would amount to no more than the right to be advised of the right to counsel in the first instance. Defendant was properly advised of and exercised that right.

B.

Defendant also argues that, because the trial court's order authorizing counsel's withdrawal had the practical effect of delaying trial beyond the statutory period, his statutory right to a speedy trial was violated. Again, we disagree.

Section 18-1-405(1), C.R.S. (1986 Repl.Vol. 8B) provides that a defendant must be brought to trial within six months after arraignment. However, § 18-1-405(3), C.R.S. (1986 Repl.Vol. 8B) contains an exception:

If a trial date has been fixed by the court, and thereafter the defendant requests and is granted a continuance for trial, the period within which the trial shall be had is extended for an additional six months' period from the date upon which the continuance was granted.

Hence, the trial court properly extended the speedy trial deadline if the continuance caused by substitution of counsel was chargeable to defendant. And, that continuance was chargeable to defendant if it was caused by an affirmative act of his, with his express consent, or by other affirmative conduct evincing consent.

Whether any of these circumstances exist must be determined on an ad hoc inquiry. People v. Scales, 763 P.2d 1045 (Colo.1988); People v. Cerrone, 867 P.2d 143 (Colo.App.1993).

Absent an abuse of discretion that results in injustice, the decision to grant a continuance is left to the sound discretion of the trial court, People v. Scales, supra, as is a motion for counsel to withdraw based on a conflict of interest. McCall v. District Court, 783 P.2d 1223 (Colo.1989).

Defendant argues, however, that the record must contain sufficient information concerning the details of the conflict to demonstrate on appeal that withdrawal was warranted. This is not required.

In People v. Schultheis, 638 P.2d 8, 14 (Colo.1981), our supreme court determined that, because of the privileged and confidential nature of communications between a client and counsel, there may be many instances in which "counsel may only state, in the motion to withdraw, that he has an irreconcilable conflict with his client." Yet, such a general representation "may mean a conflict of interest, a conflict of personality, a conflict as to trial strategy, or a conflict regarding the presentation of false evidence."

It is only if the trial court denies counsel's request to withdraw that counsel should make a "private record" of the conflict, which is not to be disclosed either to the court or to the prosecutor. The purpose of making such a record is solely to preserve evidence for any future post-trial claim by the defendant that counsel's representation was ineffective for Sixth Amendment purposes. Counsel cannot, however, disclose the details of any conflict, and the court in Schultheis criticized counsel's disclosure of his knowledge that a witness whom defendant sought to present was prepared to testify falsely.

Here, counsel advised the court that the witness endorsed by the People was a previous client and that the conflict resulted, not from that fact alone, but from information discovered by counsel and by the investigator during the investigation of both charges. It is by no means clear, therefore, that the irreconcilable conflict that counsel referred to arose simply because of information gained in confidence from the former client, such as was the case in Rodriguez v. District Court, 719 P.2d 699 (Colo.1986).

Rather, because counsel insisted that the present conflict would continue to exist, even if the People did not call the former client as a witness, it is not evident how defendant here could have effectively waived his right to conflict-free counsel, as the client specifically requested in Rodriguez, even if he were so inclined. And, in any event, the record contains no indication that defendant attempted any such waiver.

We conclude, therefore, that the representations made by counsel were sufficient to allow the trial court to determine that a serious conflict existed. Such representations may not have been such as to require the court to authorize his withdrawal. See People v. Schultheis, supra. However, because the confidential relationship may prevent counsel from making any more detailed representation, counsel's statement that a conflict is presented provides a proper basis upon which the court may authorize such withdrawal.

It is true that counsel's withdrawal may not have resulted from any conduct of the defendant and that defendant expressly did not waive his right to a speedy trial. Rather, defendant consistently refused to waive that right until the day of trial, when he was given the choice of proceeding pro se or of allowing appointed counsel to represent him after a continuance; defendant chose the latter alternative.

However, in such instances, it has been held that defendant's choice constitutes "other affirmative conduct evincing consent," so long as the record demonstrates that the trial court did not abuse its...