People v. Moody

• Decision Date: 08 June 1981
• Docket Number: No. 80SA168,80SA168
• Citation: 630 P.2d 74
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cecil MOODY, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 74

630 P.2d 74

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cecil MOODY, Defendant-Appellant.

No. 80SA168.

Supreme Court of Colorado, En Banc.

June 8, 1981.

Rehearing Denied June 29, 1981.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., Robert C. Lehnert, Asst. Atty. Gen., Denver, for plaintiff-appellee.

J. Gregory Walta, Colorado State Public Defender, Steven H. Denman, Michael Heher, Deputy State Public Defenders, Denver, for defendant-appellant.

HODGES, Chief Justice.

Defendant Cecil Moody appeals his conviction for aggravated robbery ¹ and the sentence imposed by the trial court. We affirm.

Defendant's conviction stems from the armed robbery of Angelo's Pizza Parlor in Denver. The evidence at trial indicated that at approximately 10:00 p. m. on January 5, 1975 defendant entered the pizza parlor carrying a sawed-off shotgun. He robbed the restaurant and all of its patrons. Throughout the robbery the defendant brandished the shotgun in a threatening manner.

Following a jury trial, defendant was found guilty of aggravated robbery and the trial court sentenced him to a term of 20 to 35 years imprisonment.

I.

Initially, defendant asserts that his conviction is invalid because the trial court, on its own motion, failed to hold a preliminary hearing after the defendant was found to be competent to stand trial. The argument is without merit.

Following defendant's arrest, a preliminary hearing was conducted on January 7, 1976 and probable cause was found to bind defendant over for trial. On January 20, 1976, defendant entered a plea of not guilty, and on February 17, 1976, defendant changed his plea to not guilty by reason of insanity. On August 4, 1976, the trial court found that the defendant was incompetent to stand trial, and he was committed to the state hospital for treatment.

Following a hearing on January 14, 1977, the trial court determined that the defendant had been restored to competency. No additional preliminary hearing was requested or conducted after the defendant was adjudged competent. In June 1977, defendant was found to have been sane at the time of the alleged offense, and the jury trial finally commenced on September 6, 1977.

Defendant argues that under this court's decision in Schwader v. District Court, 172 Colo. 474, 474 P.2d 607 (1970), the trial court erred in not sua sponte ordering a second preliminary hearing after defendant was determined to be competent. Specifically, defendant points to the following language in Schwader:

"(B)ecause of the nature of a preliminary hearing, the right to counsel at a preliminary hearing reaches constitutional proportions. (Citations omitted.) But the right to counsel is a meaningless right unless the accused has the capacity to confer with counsel regarding the accusation, the nature of the proceedings, and the testimony of the witnesses.... (W)hen the preliminary hearing is held first and the sanity hearing second, if the outcome of the sanity hearing is that the defendant is presently insane, then upon his return to sanity another preliminary hearing must be held."

Defendant's reliance on the Schwader case is misplaced. In Schwader, the district attorney requested a preliminary hearing, but before it could be conducted, the issue of the defendant's competency was raised. In that factual context, this court ruled that under the then existing statutory scheme, the competency determination had to be made before the preliminary hearing was conducted.

In the instant case, we note that the issue of defendant's competency was not raised until forty days after the preliminary hearing was conducted. In addition, the statutory scheme has been changed since the Schwader decision to provide for either a grand jury indictment or a preliminary hearing prior to trial on the insanity issue. ²

There is no federal constitutional requirement for a preliminary hearing in every criminal case brought by information. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974) (hereinafter Farina I ); Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); see Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). ³ However, section 16-5-301, C.R.S.1973 (1978 Repl. Vol. 8), statutorily confers the right to demand and receive a preliminary hearing upon "(e)very person accused of a felony ... by direct information, complaint, or felony complaint ..."

The statutory right to receive a preliminary hearing is not absolute, and requires that either the defendant or his attorney, or the prosecuting attorney, file a written motion demanding the preliminary hearing. If the defendant fails to file a written motion for a preliminary hearing, he is deemed to have waived his right to demand one. Farina I, supra; People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778 (1974) (hereinafter Farina II ); Crim.P. 5(a)(5).

The defendant was represented by court-appointed counsel when the trial court determined that he had regained competency. ⁴ Defendant concedes that no motion for a preliminary hearing was made. Consequently, we must conclude that by his silence defendant waived any right he may have had to a preliminary hearing following his return to competency. See Farina I, supra; Farina II, supra; Crim.P. 5(a)(5).

Defendant next asserts that trial counsel's failure to include in his motion for new trial the issue of the trial court's failure to conduct a preliminary hearing after defendant's return to competency constituted a denial of defendant's constitutional right to effective assistance of counsel. We do not agree.

Defense counsel did not request a preliminary hearing following defendant's return to competency, nor did he mention the failure of the trial court to conduct such a preliminary hearing in his motion for new trial. In our view, the decision not to seek a second preliminary hearing could have been a matter of trial strategy. "Mere disagreement as to trial strategy does not equate with ineffective assistance of counsel." People v. McCormick, 181 Colo. 162, 508 P.2d 1270 (1973); see Morse v. People, 180 Colo. 49, 501 P.2d 1328 (1972).

Defendant's argument that his trial counsel lacked authority to waive defendant's right to a preliminary hearing is also without merit. In Steward v. People, 179 Colo. 31, 498 P.2d 933 (1972), we reviewed the A.B.A. Standards for Criminal Justice and stated:

"Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf.

The decisions on ... what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client."

Even if it was oversight on the part of defendant's trial counsel to fail to raise the issue of the second preliminary hearing, we cannot say in this case that the oversight alone constituted ineffective assistance of counsel. Justice does not require errorless representation. People v. White, 182 Colo. 417, 514 P.2d 69 (1973). A review of the whole course of the proceedings and attending circumstances convinces us that there was no denial of fundamental fairness. See Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962); People v. White, supra.

II.

Defendant next argues that his conviction must be reversed because the trial court improperly denied him his constitutional right to represent himself. In our view, the trial court's denial of defendant's motion to proceed pro se was not error.

Under the provisions of the Colorado Constitution, a criminal defendant is constitutionally entitled to defend himself, Colo.Const. Art. II, Sec. 16, provided he "has an intelligent understanding of the consequences of so doing." (Emphasis in the original.) Reliford v. People, 195 Colo. 549, 579 P.2d 1145 (1978), cert. denied, 439 U.S. 1076, 99 S.Ct. 851, 59 L.Ed.2d 43 (1979); Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970). ⁵ However, under the peculiar facts of this case, the trial court properly acted within its discretion in denying defendant's motion to proceed pro se.

Trial of defendant's case began on September 6, 1977 with the selection of a jury. Shortly after the defendant was taken into the courtroom where the jury panel was awaiting voir dire, defense counsel requested a meeting in chambers. At that meeting, defendant challenged the composition of the jury panel. ⁶ Specifically, the defendant asserted that his right to a jury of his peers was being denied because only one of the forty veniremen was black. ⁷ The trial court denied defendant's motion challenging the composition of the jury because defendant had presented no evidence in support of his challenge and because the challenge did not comply with the provisions of section 13-71-113, C.R.S.1973. ⁸

Following the trial court's denial of defendant's challenge to the composition of the jury, defendant stated that he would not participate in the trial if the jury panel was not reconstituted, and that he would disrupt the proceedings if they were conducted in his presence. He asked that he be allowed to remain in the holding cell during the course of the trial. ⁹ The trial judge advised the defendant of his right to be present in a number of instances during the trial, and encouraged him to do so. Because of the defendant's continuing threats to disrupt the proceeding, the trial judge ordered that the defendant be taken to the holding cell. ¹⁰

The defendant subsequently filed a written pro se motion captioned "Motion for Reconsideration of Defendant's Motion for Mistrial." That motion again challenged the composition of the jury panel and requested that the trial judge order a mistrial. The trial court...