People v. Vialpando

• Decision Date: 07 August 1997
• Docket Number: No. 94CA1068,94CA1068
• Citation: 954 P.2d 617
• Parties: 97 CJ C.A.R. 1476 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy VIALPANDO, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 617

954 P.2d 617

97 CJ C.A.R. 1476

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Timothy VIALPANDO, Defendant-Appellant.

No. 94CA1068.

Colorado Court of Appeals Div. V.

Aug. 7, 1997.

Rehearing Denied Oct. 9, 1997.

Certiorari Denied May 11, 1998.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Roger G. Billotte, Assistant Attorney General, Denver, for Plaintiff-Appellee.

Timothy Vialpando, Pro Se.

Frolich & Jensen, LLC, Lindy Frolich, Denver, for Defendant-Appellant (on the Opening Brief).

Opinion by Judge TAUBMAN.

Defendant, Timothy Vialpando, appeals from a judgment of conviction entered upon jury verdicts finding him guilty of first degree murder, robbery, escape, possession of contraband, and being a habitual criminal. We affirm.

Defendant was taken to a hospital from a county jail for treatment of several self-inflicted stab wounds. At the hospital, he cut through his shackles with a hacksaw blade he had hidden in his clothing. When a sheriff's deputy entered defendant's hospital room, defendant attacked him. The door to the room closed when the deputy backed into it during the struggle. Witnesses heard two shots fired and saw defendant emerge from the room with the deputy's gun. The deputy had been fatally shot. Defendant fled but was captured a few minutes later.

In People v. Vialpando, 809 P.2d 1082 (Colo.App.1990), a division of this court reversed a judgment of conviction entered against defendant. On remand, defendant pleaded not guilty by reason of insanity. However, after a sanity trial, a jury found him sane at the time of the charged offenses. After a trial on the merits, the jury rejected defendant's affirmative defense of impaired mental condition and convicted him on all counts charged.

I. Request for Self-Representation

Defendant first contends that the trial court erred in denying his request to represent himself. We disagree.

A person accused of a crime enjoys the constitutional right to self-representation. The right is personal to the defendant and may not be abridged by requiring a defendant to accept a lawyer when he or she desires to proceed pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Such right, however, is not unqualified and its exercise must be unequivocal.

Thus, if a defendant makes a demand for self-representation, the court must engage the defendant in a dialogue to explain the consequences of proceeding pro se and the disadvantage of self-representation, and to determine if the waiver of the right to counsel is knowing, voluntary, and intelligent.

A criminal defendant may not assert the right to self-representation solely to impede the efficient administration of justice. Hence, unless a request is made in ample time before the date set for trial, it is incumbent upon the trial court to determine whether the request is made for purposes of delay or to gain tactical advantage, and whether the lateness of the request may hinder the administration of justice. People v. Mogul, 812 P.2d 705 (Colo.App.1991).

Further, if the court concludes that a defendant's motion is an attempt to delay the proceedings rather than a legitimate assertion of his or her right to self-representation, a trial court does not abuse its discretion in rejecting defendant's motion without making findings of fact regarding his or her competence to waive the right to counsel. People v. Bolton, 859 P.2d 303 (Colo.App.1993).

Here, defendant was continuously represented by an attorney beginning in July 1992 but did not make an unequivocal request to proceed pro se until March 10, 1994, five days before the start of the sanity trial. The trial court stated it would consider the request but was inclined to deny it. Although defendant was present at proceedings held on March 14, 15, 16, and 17, 1994, he did not renew his request for self-representation.

Defendant finally renewed the request on March 18, 1994, after the sanity trial had begun. The trial court inquired whether, if permitted to proceed pro se, he wished to dismiss his attorneys or have them serve as advisory counsel. Defendant responded that he could not answer until he had access to a law library to research the issue. Just before the trial on the merits began, defendant again indicated that he wished to proceed pro se, and stated again that he could not be sure of his desire for self-representation until he had been given access to a law library to research the issue.

In denying defendant's requests, the court found that defendant's first unequivocal request came only five days before trial and approximately 18 months after counsel had been appointed and defendant had pleaded not guilty, that defendant had engaged in disruptive behavior while present in court, that he previously had indicated that he was dissatisfied with his attorneys' representation but had later changed his mind, and that his attorneys had competently represented him throughout the proceedings. Accordingly, the court concluded that he was merely attempting to disrupt and delay the proceedings.

We conclude that the trial court did not abuse its discretion in finding that defendant's eleventh hour request was designed to disrupt the proceedings and would have resulted in delay. Accordingly, the trial court did not abuse its discretion in denying defendant's request for self-representation. See People v. Mogul, supra.

II. Access to Law Library and Law Books

Defendant next contends that he was deprived of his right to access to the courts because he was denied reasonable access to a law library and law books. We disagree.

Under the Sixth Amendment, a defendant acting in a pro se capacity is guaranteed access to law libraries or alternative sources of legal knowledge. However, when a defendant is represented by counsel or is proceeding pro se with standby or advisory counsel available to provide legal assistance if needed, such resources are considered to be the functional equivalent of a law library or alternative sources of legal knowledge. People v. Rice, 40 Colo.App. 357, 579 P.2d 647 (1978). See also State v. Williams, 122 Ariz. 146, 593 P.2d 896 (1979) (even if legal materials inmates had access to were inadequate, such inadequacy could be cured by allowing or providing inmate with assistance of counsel); People v. Mack, 190 Mich.App. 7, 475 N.W.2d 830 (1991) (same).

Here, defendant was represented by at least one attorney throughout the proceedings and, for a substantial portion of the proceedings, was represented by two attorneys. Further, the trial court found that defendant's attorneys had provided him with competent and effective representation.

Accordingly, there was no infringement of his Sixth Amendment rights and, thus, no basis for reversal.

III. Standing

Defendant next contends that the trial court deprived him of various federal and state constitutional rights by declining to rule on the constitutionality of statutes requiring that a defendant who pleads not guilty by reason of insanity, asserts the affirmative defense of impaired mental condition, or raises the question of incompetency to proceed, waives claims of confidentiality or privilege as to communications made in the course of a mental status examination and must disclose such information to the prosecution.

More specifically, he asserts that the lack of a ruling on the constitutionality of the statutes prevented him from retaining his own psychiatrist and that, therefore, he was denied his right to effective assistance of counsel and due process because of the lack of a defense psychiatrist to assist his counsel in determining his competency and in preparing a defense. Reasoning that a wealthy defendant may avoid the statutory disclosure requirements by retaining a psychiatrist to perform an examination before he or she enters a plea, but an indigent defendant cannot do so because that person cannot receive state funds for an independent defense expert until after he or she has pleaded not guilty by reason of insanity or impaired mental condition, defendant also asserts a violation of his right to equal protection of the law. We conclude that defendant does not have standing to assert these contentions.

At the times pertinent here, Colo. Sess. Laws 1987, ch. 119, § 16-8-103.6 at 622 provided that a defendant who placed his or her mental condition at issue by pleading not guilty by reason of insanity, by asserting the affirmative defense of impaired mental condition, or by raising the question of incompetency to proceed, waived certain claims of confidentiality or privilege. These waivers extend to communications made by the defendant to a physician or psychologist in the course of an examination or treatment for such mental condition for the purpose of any trial or hearing on that issue. The statute further provided that the court must order both the prosecutor and defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who examined or treated the defendant for such mental condition.

Section 18-8-108(2), C.R.S. (1996 Cum.Supp.) also provides that if a defendant is examined by an expert of his or her choice, a copy of any report of such examination must be furnished to the prosecution.

Statutes are presumptively valid and will not be overturned on the strength of speculations and conjectures of counsel. Thus, a person challenging the constitutionality of state action must show actual injury to a legally protected interest. People v. Fuller, 791 P.2d 702 (Colo.1990).

Here, the trial court offered to permit defendant to retain at state expense a defense psychiatrist to evaluate him and determine his competency, sanity, and mental condition. However, the parties disputed whether the identity of such expert had to be revealed to the prosecution under § 16-8-108(2) if defendant decided not to call...