People v. Romero, No. 82SA566

Docket NºNo. 82SA566
Citation694 P.2d 1256
Case DateJanuary 21, 1985
CourtSupreme Court of Colorado

Page 1256

694 P.2d 1256
The PEOPLE of the State of Colorado, Plaintiff-Appellee,
v.
Ramon ROMERO, Defendant-Appellant.
No. 82SA566.
Supreme Court of Colorado,
En Banc.
Jan. 21, 1985.

Page 1259

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Marie Volk Bahr, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, Linda Hotes, Deputy State Public Defender, Denver, for defendant-appellant.

QUINN, Justice.

The defendant, Ramon Romero, appeals his conviction and sentence for second degree burglary of a building. 1 He claims that the district court erred in permitting him to represent himself at trial, in failing to appoint advisory counsel to assist him at trial, in failing to provide him the same opportunities to be heard as would have been provided to an attorney, in permitting him to be tried in jail clothes, in submitting certain instructions to the jury and in failing to submit other instructions on the court's own motion, and in imposing a sentence greater than the presumptive two-to-four year sentence for second degree burglary. 2

Page 1260

We affirm the judgment and sentence.

I.

A detailed statement of the proceedings leading up to the judgment and sentence is necessary to a complete understanding of the issues before us. A complaint-information was filed in the Denver County Court alleging that "Raymond Romero also known as Daniel Jiminez" did knowingly break into the building of Denver Dry Goods, Inc., located at 1529 California Street, Denver, Colorado, on January 11, 1981, with the intent to commit therein the crime of theft. The public defender's office was appointed to represent the defendant at a preliminary hearing, and upon a finding of probable cause the case was bound over to the district court. The defendant was not able to post bail and remained in the county jail while awaiting trial.

On February 13, 1981, the defendant appeared with a deputy public defender, Maureen Cain, for arraignment in the district court and informed the court that he preferred to hire private counsel. Ms. Cain simultaneously requested and was given permission to withdraw from the case due to an alleged conflict of interest. One week later, on February 20, 1981, the defendant reported to the court that he had not yet been able to retain private counsel. Upon being advised by Cain that the source of the conflict was the defendant's refusal to discuss the case with her and thinking that the defendant might possibly be having problems communicating in English, the court requested Manuel Martinez, a deputy public defender fluent in the Spanish language, to speak to the defendant at the county jail. The court continued the case to February 26, 1981, for arraignment.

On February 26 the defendant appeared in court and stated that Mr. Martinez had not been to see him at the county jail. Deputy Public Defender Cain explained to the court that her superior believed that as long as the public defender's office was to remain on the case she should be the attorney who represented the defendant. The court, indicating that it was considering the appointment of private counsel, continued the case to March 3, 1981, for arraignment. On that occasion the court expressly noted on the record that the public defender's original motion for withdrawal was based solely on the defendant's personal dislike for Ms. Cain. Ruling that this was an insufficient ground for withdrawal, the court ordered the public defender's office to continue its representation of the defendant. The defendant again stated that he wished to hire private counsel, and the court continued the case three more weeks for arraignment.

On March 24, 1981, the defendant reported that he could not retain private counsel, whereupon the court again reaffirmed the appointment of the public defender's office and continued the case to the following day. On March 25 the defendant again appeared in court with Ms. Cain, who advised the court that she had discussed the case with the defendant on three occasions and that the defendant had told her that he did not want the public defender's office to represent him. The court addressed the defendant and informed him that if he desired court-appointed counsel the public defender's office would represent him throughout the trial. The defendant, however, stated to the court that he desired to represent himself and to enter a not guilty plea. At this point the court explained to the defendant that he had a right to represent himself, but that it was in his best interest that a lawyer represent him, especially since he was charged with a class 4 felony carrying a presumptive sentence of two-to-four years and a possible maximum sentence of eight years in the event aggravating circumstances were present. The court also informed the defendant of his right to require the prosecution to prove

Page 1261

his guilt beyond a reasonable doubt at trial and various other procedural rights, such as the right to a trial by jury, the right to cross-examine the prosecution's witnesses, the right to subpoena and to present witnesses in defense of the charge, the right to testify in his own defense, and the right to discover the prosecution's evidence in advance of trial. The court ordered the prosecutor to provide the defendant with a transcript of the preliminary hearing and other appropriate discovery materials. The prosecutor, for the purpose of showing the defendant's familiarity with the criminal justice system, requested that his prior criminal history be made part of the record of the proceedings on that day. 3 The court acquiesced in the prosecutor's request, and the defendant entered a not guilty plea and requested a jury trial. The case was set for trial on May 11, 1981. Finally, the court appointed an investigator to assist the defendant in preparation for trial.

On April 16, 1981, the court held a hearing to determine the progress of the defendant's trial preparation. The investigator appointed by the court had previously filed a written report with the court on March 30 in which he described his visits to the county jail on two occasions and the defendant's refusal to talk to him about the case. The court determined that the defendant did not want the assistance of the investigator in preparation for trial. The deputy district attorney on this occasion furnished the defendant with a copy of all materials in the prosecution's file.

On the scheduled trial date of May 11, 1981, the defendant advised the court that he had not yet received a copy of the preliminary hearing transcript. The court ordered the transcript to be provided the defendant that afternoon and continued the case to the following day for jury selection and trial. Before commencing jury selection on May 12, the court explained to the defendant the procedures involved in questioning prospective jurors, informed him that he could challenge up to eleven members of the jury panel for no reason at all, and also provided him with a written list of the grounds for challenges for cause. The court also explained to the defendant the procedures that would be followed in the trial of the case, namely, opening statements outlining the evidence, the opportunity of each party to present evidence and to cross-examine witnesses called by the opposing party, the preparation of jury instructions at the conclusion of the evidence, and closing arguments.

After the jury was selected and sworn, the prosecutor made an opening statement in which he informed the jury that the People's evidence would show that on January 11, 1981, the defendant broke a window into the Denver Dry Goods downtown store at 1529 California Street in Denver, then made his way to the jewelry department where he was confronted and taken into custody by a security guard, later attempted to escape but was subdued by the security guard, and was ultimately arrested by the Denver police. The defendant in his opening statement stated that he was "pretty well intoxicated" at the time of the offense, that he might have fallen asleep on a pallet near the store, and that when he awoke in city jail he was "pretty well beaten up."

The prosecution's evidence established the following events. At about 1:20 a.m. on January 11, 1981, the alarm system in the Denver Dry Goods downtown store alerted the security guard, Samuel Quintana, to the fact that an intruder was present in the store. Quintana traced the alarm to

Page 1262

the jewelry department where he saw a man rummaging through the drawers located behind the counter. During the trial Quintana identified the defendant as the intruder and described him for the record as follows: "he is sitting right over there ... wearing a green shirt and a red t-shirt, pair of jeans, and tennis shoes."

When Quintana confronted the defendant inside the store, he pressed his belt buckle into the defendant's back as if he had a pistol and ordered him not to move or he would shoot. He then led the defendant to the guard station where he placed him in a chair and took a night stick from under the counter. Someone from the central alarm system telephoned and told Quintana that the police had been called. A short time later the phone rang again. As Quintana answered, the defendant grabbed the night stick and raised his arm to strike. Quintana subdued the defendant by hitting him in the stomach and, after retrieving the night stick, by striking him about the head and shoulders.

As Quintana was fighting with the defendant, Denver Police Officer James Negri arrived and handcuffed the defendant to a railing in the store. Quintana and Negri made a search of the store and discovered a broken window on the alley side of the building, beneath which a pallet had been propped up, and an empty canvas bag, normally kept in the dock area, in the jewelry department. The drawers in the jewelry department had been opened...

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67 practice notes
  • Grey v. State, No. PD-0137-09.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 18, 2009
    ...788, 625 N.E.2d 579, 581 (1994) (counsel was not ineffective in failing to ask for manslaughter instruction); People v. Romero, 694 P.2d 1256, 1269 (Colo. 1985) (trial court is not obligated to instruct on a lesser offense "unless either the prosecution or the defense requests such instruct......
  • People v. Edwards, No. 02CA2487.
    • United States
    • Colorado Court of Appeals of Colorado
    • July 15, 2004
    ...defendant and may not be abridged by requiring a defendant to accept a lawyer when he or she wants to proceed pro se. People v. Romero, 694 P.2d 1256 (Colo.1985); People v. Vialpando, 954 P.2d 617 However, the right to self-representation is not unqualified, and to assert that right, a defe......
  • Downey v. People, No. 99SC664.
    • United States
    • Colorado Supreme Court of Colorado
    • June 25, 2001
    ...104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); People v. Romero, 694 P.2d 1256, 1265 (Colo.1985); People v. Lucero, 200 Colo. 335, 341, 615 P.2d 660, 663 (1980). Both the United States and Colorado Constitutions guarante......
  • People v. Aalbu, No. 83SA141
    • United States
    • Colorado Supreme Court of Colorado
    • March 11, 1985
    ...instruct on a lesser included offense unless such an instruction is requested by the defense or the prosecution. E.g., People v. Romero, 694 P.2d 1256 (Colo.1985); see People v. Paris, 182 Colo. 148, 511 P.2d 893 (1973). The defendant's Page 811 claim in this case was that he was totally in......
  • Request a trial to view additional results
67 cases
  • Grey v. State, No. PD-0137-09.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 18, 2009
    ...788, 625 N.E.2d 579, 581 (1994) (counsel was not ineffective in failing to ask for manslaughter instruction); People v. Romero, 694 P.2d 1256, 1269 (Colo. 1985) (trial court is not obligated to instruct on a lesser offense "unless either the prosecution or the defense requests such instruct......
  • People v. Edwards, No. 02CA2487.
    • United States
    • Colorado Court of Appeals of Colorado
    • July 15, 2004
    ...defendant and may not be abridged by requiring a defendant to accept a lawyer when he or she wants to proceed pro se. People v. Romero, 694 P.2d 1256 (Colo.1985); People v. Vialpando, 954 P.2d 617 However, the right to self-representation is not unqualified, and to assert that right, a defe......
  • Downey v. People, No. 99SC664.
    • United States
    • Colorado Supreme Court of Colorado
    • June 25, 2001
    ...104 S.Ct. 944, 79 L.Ed.2d 122 (1984); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); People v. Romero, 694 P.2d 1256, 1265 (Colo.1985); People v. Lucero, 200 Colo. 335, 341, 615 P.2d 660, 663 (1980). Both the United States and Colorado Constitutions guarante......
  • People v. Aalbu, No. 83SA141
    • United States
    • Colorado Supreme Court of Colorado
    • March 11, 1985
    ...instruct on a lesser included offense unless such an instruction is requested by the defense or the prosecution. E.g., People v. Romero, 694 P.2d 1256 (Colo.1985); see People v. Paris, 182 Colo. 148, 511 P.2d 893 (1973). The defendant's Page 811 claim in this case was that he was totally in......
  • Request a trial to view additional results

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