People v. Schupper, Court of Appeals No. 07CA1217
Citation | 353 P.3d 880 |
Decision Date | 03 July 2014 |
Docket Number | Court of Appeals No. 07CA1217 |
Parties | The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Sanford B. SCHUPPER, Defendant–Appellant. |
Court | Court of Appeals of Colorado |
John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee
Thomas K. Carberry, Denver, Colorado, for Defendant–Appellant
¶ 1 Defendant, Sanford B. Schupper, appeals the judgment of conviction entered upon a jury verdict finding him guilty of theft. We affirm.
¶ 2 The history of this case is a long and tortured one. Because the history provides a factual basis necessary to place this matter in context, we include it here.
¶ 3 On September 7, 1995, defendant was charged with a single count of felony theft in El Paso County (95CR3134) (“theft case”). Initially, defendant requested court-appointed counsel, but later came to an agreement to pay counsel privately.1
¶ 4 In April 2001, defendant had yet to be tried. On April 6, defendant's private counsel requested to withdraw from the case based on defendant's failure to pay approximately $120,000 in legal fees. Judge Schwartz, sympathetic to counsel but frustrated by the delay in the case, denied the motion. Private counsel then filed several additional motions to withdraw, and eventually was permitted to withdraw on May 25, 2001, based on a conflict of interest with defendant.
¶ 5 On the same day that counsel argued his initial motion to withdraw, defendant completed Form JDF208 (“affidavit ”) alleging that he was indigent and requesting court-appointed counsel. In his affidavit, defendant listed under monthly income “no salary paid since 12/15/00.” Under assets, defendant listed $610 in savings, $5500 in checking, and $5000 in personal property with nothing convertible to cash. Defendant listed $14,400 in monthly expenses and over $500,000 in “judgments.”
¶ 6 Based on the affidavit, the public defender determined defendant was entitled to court-appointed counsel, and, on June 7, 2001, a public defender was appointed to represent defendant. Pursuant to statute, section 21–1–103(3), C.R.S.2013, the district attorney received a copy of defendant's affidavit. On June 13, 2001, the prosecution filed a “motion to challenge finding of indigency,” arguing defendant had misrepresented his assets in the affidavit and that defendant was not entitled to court-appointed counsel. At a hearing on the People's motion, the court determined defendant should be appointed counsel to represent him at the indigency hearing.
¶ 7 On June 26, 2001, investigators executed a search warrant on defendant's residence and took photographic evidence of his assets. At a hearing two days later, the prosecution sought to introduce evidence from the search of defendant's home. The prosecution also subpoenaed private counsel's billing records to show the substantial funds defendant had paid counsel. Because private counsel objected to the subpoena on the grounds of attorney-client privilege, the court continued the hearing to allow the parties to brief the question of whether the billing records were privileged documents.
¶ 8 On July 30, 2001, a grand jury indicted defendant on a charge of perjury based on his affidavit (01CR2859). Consequently, the prosecution also charged defendant with violation of his bail bond in the theft and COCCA cases (01CR2889) (together with 01CR2859, the “perjury cases”). Defendant was arrested the next day, and the perjury cases were set before a different division than the theft and COCCA cases.2
¶ 9 On August 2, August 6, and August 13, 2001, the court held hearings on the appointment of alternate defense counsel for the limited purpose of representing defendant in his quest for court-appointed counsel as an indigent person.
¶ 10 The court held a bond hearing on the COCCA and perjury cases on August 16, 2001. At that hearing, the court made several findings of fact concerning defendant's assets. The court found that defendant had recently sold a piano for between $10,000 and $15,000; defendant had $80,000 in personal jewelry; defendant had an $11,000 cigar collection; and defendant had an exclusive wine collection. While alternate defense counsel was present at the hearing, the court continued the indigency determination so that the alternate defense counsel could fully prepare.
¶ 11 During the pendency of the indigency determination, the public defender's office was still representing defendant on the theft and COCCA cases. Trial on the theft case was scheduled to start on September 10, 2001. On that date, the trial court continued the case to provide the public defender with additional time to prepare. On the same day, the prosecution moved to add fourteen counts of check fraud related to the felony theft charge.
¶ 12 The court held additional hearings on defendant's indigency affidavit on September 19, October 10, October 29, November 19, and December 13, 2001. During that time, the court appointed a collections investigator to meet with defendant to determine his assets and liabilities for purposes of the indigency determination. The collections investigator recommended defendant be denied court-appointed counsel.
¶ 13 On December 19, 2001, the court held its final hearing on defendant's request for court-appointed counsel. After testimony from the collections investigator and a moving company employee hired by defendant to move items out of his home, the court concluded as follows:
¶ 14 After the court determined defendant was not entitled to court-appointed counsel, defendant represented himself. Defendant filed multiple motions for reconsideration and orally requested the appointment of counsel.
Defendant also filed a motion to recuse Judge Schwartz, arguing the judge was biased against him based on ...
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