State v. Gallegos

• Decision Date: 05 October 2006
• Docket Number: No. 20050448-CA.,20050448-CA.
• Citation: 147 P.3d 473,2006 UT App 404
• Parties: STATE of Utah, Plaintiff and Appellee, v. William E. GALLEGOS, Defendant and Appellant.
• Court: Utah Court of Appeals

147 P.3d 473

2006 UT App 404

STATE of Utah, Plaintiff and Appellee, v. William E. GALLEGOS, Defendant and Appellant.

No. 20050448-CA.

Court of Appeals of Utah.

October 5, 2006.

Randall W. Richards, Richards Caine & Allen, Ogden, for Appellant.

Mark L. Shurtleff, Attorney General, and Jeanne B. Inouye, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges BENCH, GREENWOOD, and DAVIS.

OPINION

BENCH, Presiding Judge:

¶ 1 Defendant William E. Gallegos appeals his convictions for attempted murder and domestic violence assault in violation of Utah Code sections 76-5-203 and 77-36-1. See Utah Code Ann. §§ 76-5-203, 77-36-1 (Supp. 2006).

BACKGROUND¹

¶ 2 Defendant and the victim, Amber Marchant, had an ongoing abusive relationship. On prior occasions, Marchant would report Defendant's abuse to the police, but then renounce her statements after she reconciled with Defendant. A few days before the abuse in this case, Marchant moved back in with Defendant. On October 19, 2004, Marchant returned home in the early morning, waking Defendant. They argued, and Defendant proceeded to hit Marchant twice in the leg with a cane and to stab her in the leg with a jagged-edged knife. When Marchant could not get her leg to stop bleeding, Defendant's anger increased. He duct-taped Marchant's stab wound and then continued to hit her on the head, arms, and back with the cane. Marchant testified that the cane eventually broke into three pieces. Defendant then stabbed Marchant in her neck with a small, sharp, silver knife, and in her temple with a wooden butter knife. While stabbing Marchant, Defendant stated, "I ought to kill you."

¶ 3 After the attack, Defendant duct-taped Marchant's mouth and told her to shower. While Defendant was eating, Marchant ran across the street to a gas station where some police officers had gathered. After Defendant was arrested, the booking clerk told him that he was being charged with attempted homicide. Defendant responded, "[a]ttempted homicide. I should have just killed her. I had her right there."

¶ 4 The trial court found Defendant indigent and appointed a public defender, Martin Gravis, to represent him. Defendant sent the court a letter complaining about Gravis's representation. On December 1, 2004, at Defendant's preliminary hearing, Defendant requested a continuance in order to fire Gravis and hire private counsel. The court granted the continuance but instructed Gravis to remain as counsel until substitute counsel entered an appearance. When the preliminary hearing resumed on December 29, Gravis was still representing Defendant.

¶ 5 In January 2005, Defendant sent letters to the court complaining about the following: his inability to convince the county attorney to charge Marchant with assault, his frustration with Gravis's representation, and Gravis's refusal to help Defendant press charges against Marchant. Defendant also requested that he be allowed to keep all legal materials, that Gravis visit the jail and assist him in a timely manner, and that Gravis provide Defendant with all necessary legal books. In the alternative, if his requests could not be granted, Defendant wanted another attorney. A few weeks later, Defendant sent another letter requesting new counsel, alleging that Gravis had refused to provide him with the necessary case law.

¶ 6 In February, at the pretrial conference, Defendant asked the court to release Gravis and to allow Defendant to represent himself. The trial court conducted an extensive colloquy regarding Defendant's constitutional right to counsel. The trial court advised Defendant against self-representation and explained the potential consequences. Defendant, however, insisted that he did not want Gravis to represent him or even to assist as standby counsel. He subsequently waived his right to an attorney. Defendant concedes that the trial court's colloquy regarding his waiver of counsel was adequate. Further, Defendant does not challenge the trial court's refusal to appoint substitute counsel. Defendant also subsequently waived his right to a jury trial.

¶ 7 In March, at a court conference on the day before trial, the court noted that Defendant had sent various letters requesting legal assistance. When the court questioned Defendant about the requests, he responded, "I don't want an attorney[.] I'll be my attorney." The court again warned Defendant about the risks of self-representation.

¶ 8 The next day, at the beginning of the trial, the State voiced its concern about Defendant's inconsistent positions on representation. The court again questioned Defendant and reminded him of his right to counsel. Defendant refused representation and confirmed his waiver of counsel.

¶ 9 On the second day of trial, during the testimony of the State's seventh and final witness, Defendant requested reappointment of counsel. The court denied the request, concluding that Defendant's midtrial request was too late because they were halfway through trial. Defendant then called five witnesses to testify on his behalf. Defendant presented evidence to support his self-defense claim as well as his claims that Marchant cuts herself. Upon hearing all the evidence, the trial court convicted Defendant for both attempted murder and domestic violence assault. Defendant now appeals.

ISSUES AND STANDARD OF REVIEW

¶ 10 Defendant asserts that the trial court denied him his Sixth Amendment right to a fair trial when it denied his midtrial request for reappointment of counsel. A trial court's denial of a motion to reappoint counsel, where the motion follows a proper waiver of the right to counsel, will be overturned only for an abuse of discretion. See Commonwealth v. Jackson, 376 Mass. 790, 383 N.E.2d 835, 839 (1978).

¶ 11 Defendant also contends that the trial court abused its discretion in denying his motion for a continuance. See State v. Cabututan, 861 P.2d 408, 413 (Utah 1993) ("The standard of review for the denial of a motion for continuance is abuse of discretion[.]").

ANALYSIS

I. Right to Counsel

¶ 12 Defendant asserts that the trial court denied him his Sixth Amendment right to a fair trial when it refused to grant his midtrial request for reappointment of counsel. We disagree.

A. Proper Standard of Review

¶ 13 "The Sixth Amendment to the United States Constitution guarantees an accused the right to the assistance of counsel." State v. Heaton, 958 P.2d 911, 917 (Utah 1998). However, "the Sixth Amendment also guarantees an accused the right to self-representation, `provided only that he [or she] knowingly and intelligently forgoes his [or her] right to counsel.'" Id. (alterations in original) (citation omitted).

¶ 14 Here, Defendant concedes that the trial court properly conducted a review of Defendant's right to counsel "at the beginning of the trial, as well as at the pretrial hearing." Accordingly, Defendant does not challenge the trial court's conclusion that he voluntarily, knowingly, and intelligently waived his right to counsel. Rather, Defendant claims that the trial court erred by not allowing him to revoke his waiver midtrial and by not reappointing an attorney to represent him.

¶ 15 Although we have found no Utah case law addressing the standard of review for the denial of a midtrial request to reappoint counsel, "[s]everal states have determined that it is within the trial court's discretion to appoint counsel after a defendant begins the trial pro se." Koehler v. State, 499 N.E.2d 196, 199 (Ind.1986); see also People v. Smith, 109 Cal.App.3d 476, 167 Cal.Rptr. 303, 306 (1980) (determining whether the trial court abused its discretion in refusing to revoke a waiver of a pro se defendant); People v. Price, 903 P.2d 1190, 1193 (Colo.Ct.App.1995) ("A trial court is not compelled to grant a criminal defendant's request to withdraw a valid waiver of the right to counsel, but must exercise its discretion in evaluating the circumstances surrounding the request."); Commonwealth v. Jackson, 376 Mass. 790, 383 N.E.2d 835, 839 (1978) (stating that although the court recognizes "the importance of counsel," it "rejects any suggestion that every defendant has an absolute right at the moment trial is to begin to retract his decision to represent himself"; rather, it is "within the broad discretionary power of [the] court"); State v. Vincent, 137 N.M. 462, 112 P.3d 1119, 1133 (App.2005) ("[O]nce a defendant has validly waived his right to counsel, he may not later demand the assistance of counsel as a matter of right."); State v. Harmon, 575 N.W.2d 635, 645 (N.D.1997) ("Several courts have held it is discretionary for a trial court to allow an accused to revoke a waiver of the right to counsel during trial."); 3 JOSEPH G. COOK, CONSTITUTIONAL RIGHTS OF THE ACCUSED § 9:1 (3d ed. 1996) ("[A]n accused who elects to proceed pro se need not be permitted to change her mind during trial.").²

¶ 16 We conclude that "[a]fter a competent defendant has made a valid waiver, reappointment [midtrial] is a matter for the discretion of the trial court." State v. Canedo-Astorga, 79 Wash.App. 518, 903 P.2d 500, 504 (1995). Therefore, "once an unequivocal waiver of counsel has been made, the defendant may not demand the assistance of counsel [midtrial] as a matter of right since reappointment is wholly within the discretion of the trial court." Id. (quotations and citation omitted)

B. Abuse of Discretion Determination

¶ 17 "In exercising discretion, a trial court should consider all the facts and circumstances of the case." Id.

"Relevant factors should include, among others, the following: (1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation; (2) the reasons set forth for the request; (3) the length and stage of the trial proceedings; (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion; and (5) the likelihood of defendant's...