State v. Barela

• Decision Date: 02 August 2018
• Docket Number: NO. A-1-CA-35355,A-1-CA-35355
• Citation: 429 P.3d 961
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ernest Bryan BARELA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

429 P.3d 961

STATE of New Mexico, Plaintiff-Appellee,

v.Ernest Bryan BARELA, Defendant-Appellant.

NO. A-1-CA-35355

Court of Appeals of New Mexico.

Filing Date: August 2, 2018

Certiorari Denied, August 29, 2018, No. S-1-SC-37184

Hector H. Balderas, Attorney General, Maris Veidemanis, Assistant Attorney General, Santa Fe, NM, for Appellee.

Bennett J. Baur, Chief Public Defender, Santa Fe, NM, Steven J. Forsberg, Assistant Appellate Defender, Albuquerque, NM, for Appellant.

VIGIL, Judge.

{1} Defendant Ernest Bryan Barela appeals the district court’s denial of his motion to proceed pro se, made after years of delay and on the morning trial was set to begin, and raises a claim of ineffective assistance of counsel. We affirm.

I. BACKGROUND

{2} Defendant was charged with residential burglary, unlawful taking of a motor vehicle, stalking, larceny, and escape or attempt to escape from a peace officer on June 21, 2012. Defendant’s charges stemmed from an event on May 22, 2012, involving Defendant’s ex-girlfriend, E. Ramirez. Defendant and Ms. Ramirez had been involved in a two-year relationship and had a child together in March 2012. However, Ms. Ramirez ended their relationship in early May 2012.

{3} Ms. Ramirez testified during Defendant’s trial that, on May 22, 2012, as she went inside her mother’s house—a mobile home with an attached garage—and attempted to close the door behind her, Defendant pulled the door from the outside and tried to open it. Defendant asked Ms. Ramirez to open the door so they could talk. Ms. Ramirez told him to leave or she was going to call 911. However, Defendant persisted and said he wanted to see their child. Ms. Ramirez refused to open the door but told Defendant that he could see their child through the glass.

{4} Ms. Ramirez testified that Defendant then pulled a pocket knife and threatened to cut his own throat. Ms. Ramirez still would not open the door and told Defendant that she would call his father to give him a ride home. After Defendant threatened to beat her up, Ms. Ramirez hid inside her mother’s garage and called 911. Ms. Ramirez stayed inside the garage and heard Defendant trying to open the door to the garage. Shortly thereafter, Deputy Sheriff Paul Telles arrived at the house but was unable to find anyone else inside. Ms. Ramirez then left the garage and noticed that her purse, wherein she kept her car keys and credit cards, and vehicle were missing.

{5} On June 6, 2012, Deputy Telles went to Defendant’s home to serve an arrest warrant on Defendant. While there, Deputy Telles spoke with Defendant’s father who informed Deputy Telles that he had no contact with Defendant. After receiving permission from Defendant’s father, Deputy Telles searched the home to ensure Defendant was not inside. Deputy Telles found Defendant hiding inside one of the kitchen’s cabinets and placed him under arrest.

{6} Following his arraignment on July 2, 2012, Defendant requested a new attorney on three separate occasions. On January 9, 2013, Defendant requested a new attorney one day before trial was scheduled to begin. On March 17, 2014, he requested a new attorney two days before trial was scheduled to begin. On February 13, 2015, Defendant requested a new attorney the day he was scheduled to attend a pre-trial conference in district court. On all three occasions, the district court granted Defendant’s request, allowed defense counsel to withdraw, gave Defendant more time to retain new representation, and gave new defense counsel more time to prepare for trial. Defendant’s actions caused his case to be delayed for over three years from the date of his arrest. By the third request, the new judge assigned to Defendant’s case explicitly told Defendant that he was causing his case to be delayed.

{7} During a hearing on March 2, 2015, Defendant appeared without an attorney and without having applied to the public defender’s office, despite the district court’s order to do so for a fourth public defender. After the district court informed Defendant that a private attorney with whom he had spoken would not be representing him and that he would need to hire a public defender, Defendant asked, "And I can’t represent myself? That’s what you’re saying?" Defendant agreed to go to the public defender’s office despite his desire to have the private attorney represent him. Robert Turner, a contract attorney for the public defender’s office, entered his appearance as Defendant’s new counsel. The district court scheduled Defendant’s trial for August 10, 2015.

{8} During a pre-trial hearing on August 6, 2015, at which Defendant failed to appear, Mr. Turner notified the district court that he needed to briefly interview two officers prior to trial and could do it the morning of trial because he had already prepared based on their reports. Mr. Turner notified the district court in advance that he would have an associate in his office work on the case and that his associate did not need to interview Ms. Ramirez.

{9} On the morning of trial, Mr. Turner’s associate, August Rane, appeared with Defendant. Defendant requested to represent himself, stating that he and Mr. Turner had spoken a great deal already and that Mr. Rane had not spoken with him before the day of trial, had not interviewed the witnesses in the case, and did not know the facts that Mr. Turner knew. However, Mr. Rane informed the district court that he had discussed the case with Mr. Turner, read all of the interviews, prepared the case, and would need only a few minutes to interview one officer. The district court inquired into Defendant’s competence and basis for such a request, and informed him of the potential pitfalls of self-representation, the nature of the charges, and possible penalties associated with each offense. The district court then asked Defendant if he was ready to proceed to trial that morning. Defendant responded that he was not ready, at which point the district court denied Defendant’s motion for self-representation. The district court stated the untimeliness of Defendant’s motion and his lack of preparation as some of the reasons it was denying his motion. The district court then permitted Mr. Rane some time to interview an officer.

{10} The parties proceeded to trial with Mr. Rane representing Defendant. The jury returned a verdict of guilty of stalking and escape or attempted escape from a peace officer, but acquitted him of all other charges.

II. DISCUSSION

{11} Defendant now asks this Court to reverse his convictions and remand for a new trial based on both the district court’s denial of his motion for self-representation and his claim of ineffective assistance of counsel.

A. Right to Self-Representation

{12} Defendants have a constitutional right to self-representation. Faretta v. California , 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ; State v. Garcia , 2011-NMSC-003, ¶ 24, 149 N.M. 185, 246 P.3d 1057. To proceed pro se, a defendant must (1) "clearly and unequivocally" assert his intention to represent himself, (2) make his assertion in a timely fashion, and (3) "knowingly and intelligently" waive his right to counsel. Garcia , 2011-NMSC-003, ¶ 25, 149 N.M. 185, 246 P.3d 1057. However, a defendant may not invoke his right to self-representation "to cause delay or thwart the orderly and fair administration of justice." Id . (internal quotation marks and citation omitted). The district court is free to reject a motion for self-representation on any of these independent grounds. Id . ¶ 30. We review de novo whether a defendant made a valid knowing, intelligent, and voluntary waiver of his constitutional right to counsel. State v. Reyes , 2005-NMCA-080, ¶ 6, 137 N.M. 727, 114 P.3d 407. We review for clear error the factual findings underlying the district court’s decision to deny a defendant’s motion for self-representation. United States v. Simpson , 845 F.3d 1039, 1046 (10th Cir. 2017).

{13} Defendant did not clearly and unequivocally assert his intention to represent himself on March 2, 2015. The requirement that a defendant clearly and unequivocally assert his intent to represent himself is "necessary to protect against an inadvertent waiver of the right to counsel by a defendant’s occasional musings on the benefits of self-representation." United States v. Mackovich , 209 F.3d 1227, 1236 (10th Cir. 2000) (internal quotation marks and citation omitted). "[W]e indulge in every reasonable presumption against waiver[,]" Simpson , 845 F.3d at 1046 (internal quotation marks and citations omitted), and "must ascribe a ‘constitutional primacy’ to the right to counsel" during "ambiguous situations created by a defendant’s vacillation," Mackovich , 209 F.3d at 1237 (internal quotation marks and citations omitted). Moreover, the district court is not required to clarify an equivocal request. See Simpson , 845 F.3d at 1051 ("[W]e have never required a district court to clarify an equivocal request."); Duncan v. Schwartz , 337 F. App'x 587, 593 (7th Cir. 2009) (" Faretta does not require a more searching inquiry whenever a defendant makes ambiguous, equivocal statements that could potentially be construed as indicating a desire for self-representation."). Defendant’s brief inquiry into his right to represent himself did not amount to a clear, unequivocal assertion of that right, especially given his stated intent of retaining private counsel.

{14} The district court did not err in finding that Defendant’s August 10, 2015, motion to represent himself was untimely. When a clear, unequivocal request for self-representation is made in advance of trial, the defendant is "presumptively entitled to the right." Garcia , 2011-NMSC-003, ¶ 26, 149 N.M. 185, 246 P.3d 1057. However, that presumption can be overcome where a defendant’s motion is used as a tactic to secure delay. See United States v. Tucker , 451 F.3d 1176, 1181 (10th Cir. 2006) ("[A] motion for self-representation is timely if it is made before the jury is impaneled, unless it is...