People v. Thompson, Court of Appeals No. 09CA2784

• Decision Date: 04 May 2017
• Docket Number: Court of Appeals No. 09CA2784
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Aaron Duane THOMPSON, Defendant-Appellant.
• Court: Colorado Court of Appeals

413 P.3d 306

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Aaron Duane THOMPSON, Defendant-Appellant.

Court of Appeals No. 09CA2784

Colorado Court of Appeals, Div. III.

Announced May 4, 2017

Cynthia H. Coffman, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Keyonyu X. O'Connell, Alternate Defense Counsel, Denver, Colorado; Lynn C. Hartfield, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE BERNARD

¶ 1 This appeal poses a question of first impression in Colorado: Do indigent defendants in criminal cases have (1) a constitutional right to be represented by private counsel who are willing to represent them without cost; and simultaneously (2) a constitutional right to receive state-funded ancillary services, such as investigators and experts? Defendant asserts that the trial court denied his Sixth Amendment right to the counsel of his choice when it decided that an attorney who offered to represent him without pay would not be entitled to receive state funds to obtain ancillary services. The court, instead, appointed the public defenders.

¶ 2 This question is hard enough to answer because it requires plotting the intersection of cases that discuss the right to counsel of choice with cases that discuss an indigent defendant's right to obtain state-funded ancillary services. But the question becomes harder to answer because we must also consider whether a Colorado Supreme Court case that describes what happens at that intersection is contrary to cases that the United States Supreme Court has decided. And finding an answer becomes harder still because we must also evaluate what effect a Chief Justice Directive had on the intersection.

¶ 3 It is a testament to the complexity of this question that the three judges who sat on this case found three different ways to answer it. Two of us answer the question differently, but we both believe that the answer leads us to affirm defendant's conviction. The remaining judge provides a third answer, and she would reverse the conviction.

¶ 4 A grand jury indicted defendant, Aaron Duane Thompson, for numerous charges related to the disappearance and presumed death of his six-year-old daughter, A.T. The prosecution also charged defendant with multiple instances of having physically abused every other child who lived in his home.

¶ 5 At the end of his trial, the jury convicted him of most of the charges. He appeals. We affirm.

I. Background

¶ 6 Defendant lived with: his girlfriend, Shely Lowe; her five children, K.S., T.L., A.L., E.W.J., and K.W.; his two children, A.T.J. and A.T.; and her half-brother, R.R. In November 2005, defendant called the police to report that A.T. had run away from home after an argument over a cookie. The police initiated an extensive search for A.T. that proved to be fruitless.

¶ 7 During the investigation, officers spoke with Eric Williams, Sr., Ms. Lowe's ex-boyfriend and the father of two of her children. He told the police that, about a year before defendant had reported A.T. missing, Ms. Lowe told him that A.T. had suddenly died one evening in the bathtub. Ms. Lowe told Mr. Williams that she and defendant had buried the child "far away."

¶ 8 The police also spoke with Ms. Lowe's close friend, Tabitha Graves. Ms. Graves described a conversation with Ms. Lowe approximately one year before defendant reported A.T. missing in which Ms. Lowe said that she had found A.T. dead in the child's bed one morning. Ms. Lowe explained that defendant had removed the child's body from their home and that they were trying to concoct a plan to cover up A.T.'s death.

¶ 9 Officers then questioned the other children in the household. They initially told similar stories that went as follows: They had seen A.T. at home earlier on the day that she ran away. They parroted various details about A.T., including her favorite food, her favorite color, and her most recent Halloween costume.

¶ 10 But the officers' questioning turned up more than mundane details. For example, the children said that defendant and Ms. Lowe disciplined them with "whoopins."

¶ 11 The officers contacted social services, and case workers placed the children with foster families. Once they were in different environments, the children gradually began to disclose details about physical abuse that they had endured. They explained that A.T. had not been in the home for some time before defendant reported her missing—evidence at trial indicated that the girl may have been gone for as long as two years—and that defendant and Ms. Lowe had told them to lie to the police about A.T.

¶ 12 A grand jury indicted defendant on sixty charges, including child abuse resulting in death, false reporting, abuse of a corpse, assault, contributing to the delinquency of a minor, child abuse, conspiracy, and accessory. (The grand jury did not indict Ms. Lowe because she had died of natural causes during the investigation.)

¶ 13 The trial jury convicted defendant of most of the charges, including child abuse resulting in death, child abuse, assault, false reporting, concealing the child's death, contributing to the delinquency of a minor, and conspiracy.

¶ 14 The trial court sentenced defendant to a twelve-year jail sentence, to be followed by 102 years in prison.

II. The Trial Court Did Not Violate Defendant's Sixth Amendment Right to Counsel of Choice

A. Background

¶ 15 Shortly after the grand jury indicted him, defendant appeared before the trial court with an attorney, David Lane. Mr. Lane said that he had represented defendant for "about two years" as "retained counsel." But defendant was indigent, and Mr. Lane thought that he would "qualify for court-appointed counsel." Mr. Lane made clear that he was "willing to continue" to represent defendant as "retained counsel." Although defendant wanted Mr. Lane "to represent him," he could not pay for ancillary services, such as "an investigator" or "various experts in various fields." Mr. Lane added that the Constitution obligated the trial court to provide such ancillary services to indigent defendants at state expense.

¶ 16 Mr. Lane asserted that defendant was being forced to choose between two constitutional rights: the right to counsel of choice and the right to receive ancillary services at state expense. He said that a Colorado Supreme Court case, People v. Cardenas , 62 P.3d 621 (Colo. 2002), had forced defendant into making this choice, and that this Colorado case clashed with a more recent United States Supreme Court case, United States v. Gonzalez-Lopez , 548 U.S. 140, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). Mr. Lane then said that the court should allow him to continue to represent defendant and that it should also agree to pay state funds for any ancillary services that defendant might require.

¶ 17 The trial court declined Mr. Lane's invitation to "overrule" Cardenas . Mr. Lane then said that defendant could not get a fair trial without ancillary services. So, he was therefore forced to "step aside" and to ask the court to appoint the public defenders to represent defendant. He registered defendant's objection to his being forced to leave the case, citing the Sixth Amendment, the Fourteenth Amendment, and "analogous provisions of the Colorado Constitution."

¶ 18 The trial court promptly appointed the public defenders as defendant's attorneys, and Mr. Lane's connection with this case ended.

B. Defendant's Contentions

¶ 19 Defendant contends that the trial court denied him his Sixth Amendment right to his counsel of choice. It did so when it decided that it would not end-run Cardenas and authorize Mr. Lane, acting as defendant's retained counsel, to receive state-funded ancillary services in the course of representing defendant.

¶ 20 As far as this issue is concerned, we find ourselves at an unusual divide for a three-judge panel. Judge Webb "take[s] no position" on the analysis that the reader is about to encounter, but he concurs with the decision to affirm defendant's convictions. Judge Dunn dissents from this part of the opinion.

¶ 21 After examining the constitutional issues that were preserved in the trial court and have been addressed by defendant and the prosecution on appeal, I conclude that (1) the court did not abridge defendant's constitutional right to counsel of choice; and (2) any error that the court may have committed was harmless when, in the absence of a request from Mr. Lane, it did not sua sponte apply a Chief Justice Directive that addressed when a court could provide state-funded ancillary services to indigent defendants who were represented by pro bono counsel.

C. Right to Counsel of Choice

¶ 22 Defendant's appellate contentions proceed in three steps. Although he cites a variety of authority in support of all three steps, one or two United States Supreme Court cases form the foundation for each one.

¶ 23 The first step asserts that defendant had "a right to continued representation" by Mr. Lane. This step relies on cases such as Gonzalez-Lopez , 548 U.S. at 140, 126 S.Ct. 2557, and Caplin & Drysdale, Chartered v. United States , 491 U.S. 617, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989).

¶ 24 The second step submits that the trial court violated this right when it declined to rule on Mr. Lane's "request for ancillary services." This step focuses on Ake v. Oklahoma , 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985).

¶ 25 The third step claims that, by requiring defendant to be represented by the public defender in order to obtain those ancillary services, the trial court improperly placed defendant on the horns of a constitutional dilemma: It forced him to choose between his right to be represented by Mr. Lane, his counsel of choice, and his right to present his defense, via the ancillary services that Mr. Lane sought. This step is based on Simmons v. United States , 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

¶ 26 As I will explain below, these United States Supreme...