State v. Gamble
| Decision Date | 23 July 2008 |
| Docket Number | No. 33240.,33240. |
| Citation | 146 Idaho 331,193 P.3d 878 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Robert R. GAMBLE, Defendant-Respondent. |
| Court | Idaho Court of Appeals |
Nevin, Benjamin, McKay & Bartlett; Dennis A. Benjamin, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Ralph R. Blount, Deputy Attorney General, Boise, for respondent.
Robert R. Gamble appeals from his judgment of conviction for trafficking in methamphetamine, delivery of a controlled substance, trafficking in methamphetamine by manufacturing, being a persistent violator, and unlawful possession of a firearm. We affirm.
On November 3, 2005, Idaho State Police Detective Elizabeth Bradbury was conducting surveillance on Gamble's residence. She watched as a dark colored pickup truck arrived at the house and a man, whom she identified as Kenneth Runkle, got out and went into the house where he remained for ten to twenty minutes. Runkle then got back into the truck, drove away, and returned about forty minutes later. He again went inside the house and came out approximately ten minutes later with a man Detective Bradbury identified as Gamble. She watched as Runkle put a white plastic grocery bag into a toolbox in the bed of the pickup and then drove away. Gamble reentered the house.
Shortly after Runkle left Gamble's house the second time, Officer Christopher Donahue, an Idaho State Trooper, stopped Runkle's truck and arrested him for driving without privileges. In searching the truck, Officer Donahue found in the toolbox the white plastic bag which contained women's clothing, a box of condoms, and a sealed plastic baby bottle liner containing a little over 27 grams of methamphetamine. Officer Donahue then questioned Runkle, who said the drugs did not belong to him and asked where they had been found. Later, Runkle asked whether there was anything he could do to make any drug charges "disappear." Cash in the amount of $1,036 was found in Runkle's pant's pocket which Runkle told the officer was the proceeds from a car he had just sold.
Contemporaneously with Runkle's arrest, a search warrant was executed at Gamble's residence where he lived with a woman. In addition to smelling the distinct odor of methamphetamine manufacture, in searching the house and the outbuildings, the officers found a colander containing approximately 200 pills, both full and empty containers of HEET (a solvent), both dry and damp coffee filters (some containing possible binder material), an empty pseudoephedrine pill bottle, acetone, red phosphorus, iodine, lye, drain opener, tubing with methamphetamine residue inside, funnels, toluene, camp fuel, and fans. They also found various drug paraphernalia, surveillance equipment, two safes, various documents including an address book listing Runkle's name, a digital scale, a box of baby bottle liner bags, drug ledgers, a heat sealer, and recipes for cooking methamphetamine. The safes contained photographs, multiple bags of methamphetamine (a total of approximately 80 grams), over $6,000 in cash and various other documents. A duffle bag containing two firearms and ammunition was also found.
Gamble was arrested and charged with trafficking in methamphetamine, Idaho Code § 37-2732B(a)(4)(A), unlawful possession of a firearm, I.C. § 18-3316, delivery of a controlled substance, I.C. 37-2732(a)(1)(A), conspiracy to deliver methamphetamine, I.C. §§ 37-2732(a)(1)(A), 18-1701, trafficking in methamphetamine by manufacturing, I.C. 37-2732B(a)(3), and being a persistent violator, I.C. § 19-2514. Shortly thereafter, the state filed a motion for joinder, seeking to join his case with Runkle's case. Runkle had been charged with conspiracy to deliver methamphetamine and possession of methamphetamine with intent to deliver. Over the defendants' objection, the district court granted the motion.
The state then filed a notice of intent to introduce Idaho Rule of Evidence 404(b) evidence that on July 8, 2005 (four months prior to the events at issue at trial), Gamble while on a motorcycle, had unsuccessfully tried to elude police. When he was arrested, he had on his person a large amount of cash, drug ledgers, and an address book containing the name and phone number for Runkle. Notably, a letter found in Gamble's residence during the later execution of the search warrant made reference to the eluding incident. The defendants objected to the introduction of Rule 404(b) evidence, but the court allowed its admission with limited exception.
Seven days before trial, Gamble sent a note from jail to both the trial judge and his attorney, requesting substitute counsel alleging his attorney had repeatedly asked for continuances when one of Gamble's witnesses was ill and dying, had not paid attention to detail, had not subpoenaed certain witnesses for the defense, had not conducted appropriate research, had not communicated with him, and was incompetent. The day the trial commenced, the court allowed Gamble to speak to his concerns, questioned the attorney, and determined there was no basis to conclude counsel was not prepared to go to trial.
The trial proceeded and after the state rested, Gamble and Runkle moved for dismissal of the conspiracy charges on the basis that a conspiracy to deliver cannot be sustained when the only delivery is from one principal to another without any allegation that there was intent to deliver to a party besides the two principals. The court agreed and dismissed the conspiracy charges. The defendants then moved for a mistrial, citing that the Rule 404(b) evidence had been admitted only to prove a connection between the two men for the purposes of the conspiracy charge and now that those charges had been dismissed, the evidence was no longer relevant and was highly prejudicial. The court denied the motion, but gave the jury a cautionary instruction that they should consider evidence of the July 2005 eluding incident only on the issues of "intent and knowledge."
The remaining charges, aside from the persistent violator allegation, went before the jury and the jury found Gamble guilty. The persistent violator allegation was heard by the court which found the allegation to be true, and Gamble's judgment of conviction was subsequently entered. Gamble now appeals.
Gamble argues the district court abused its discretion in denying his request for substitute counsel. In the note to the district court requesting new counsel, Gamble pointed out several reasons for the request, including that his counsel had sought multiple continuances despite the fact that one of Gamble's key witnesses (who would allegedly testify that the firearms found in the residence were not Gamble's) was dying, that counsel had not subpoenaed potential defense witnesses, and that counsel was "not paying attention to detail" or completing research and other actions necessary to prepare for trial. At the hearing on his motion, Gamble alleged that his strategy in defending against the charges differed from his counsel's and also asserted that there was a possible successful suppression motion that could have been investigated through a witness whom counsel had not contacted. Gamble's attorney responded by admitting that he had not arranged a deposition for the dying witness, nor subpoenaed her for trial, but claimed that he had repeatedly tried to contact the witness who had information regarding a possible suppression motion and had been unable to reach him. Presented with these claims, the district court denied Gamble's motion for substitute counsel, stating that it saw no evidence counsel was unprepared for trial and that the issues raised by Gamble were largely matters of trial strategy.
Upon being made aware of a defendant's request for substitute counsel, the trial court must afford the defendant a full and fair opportunity to present the facts and reasons in support of a motion for substitution of counsel. State v. Clayton, 100 Idaho 896, 898, 606 P.2d 1000, 1002 (1980). With a showing of good cause, a trial court may grant such a request for an indigent defendant. I.C. § 19-856; State v. Nath, 137 Idaho 712, 714-15, 52 P.3d 857, 859-60 (2002). The decision to do so is within the discretion of the trial court. Nath, 137 Idaho at 715, 52 P.3d at 860; Clayton, 100 Idaho at 897, 606 P.2d at 1001. The standard of review is an abuse of discretion standard, found when denial of the motion results in a violation of the defendant's right to counsel. Nath, 137 Idaho at 715, 52 P.3d at 860; State v. Priest, 128 Idaho 6, 11, 909 P.2d 624, 629 (Ct.App.1995). Notably, the right to counsel does not necessarily mean a right to the attorney of one's choice, State v. Peck, 130 Idaho 711, 713, 946 P.2d 1351, 1353 (Ct.App.1997), and mere lack of confidence in otherwise competent counsel is not necessarily grounds for substitute counsel in the absence of extraordinary circumstances. State v. McCabe, 101 Idaho 727, 729, 620 P.2d 300, 302 (1980); Peck, 130 Idaho at 713, 946 P.2d at 1353.
It his initial brief to this Court, Gamble focused solely on his contention that the lower court did not make the requisite inquiry into his request for substitute counsel.1 However, the record shows that on the morning of trial, counsel for Gamble informed the court that Gamble was not happy with his representation, and the court gave him the opportunity to express his concerns, which he did. The court then asked Gamble's counsel about the concerns that had been raised, and following his comments, concluded that counsel was not unprepared for trial. This exchange provided Gamble with a "full and fair opportunity" to explain his reasons for wishing to discharge his public defender in compliance with Clayton. Accordingly, we reject Gamble's contention that the court erred in this respect.
In his reply brief, Gamble raises for the first time the...
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State v. Severson
...existed in two additional cases because the error was harmless in light of the evidence produced at trial. See State v. Gamble, 146 Idaho 331, 193 P.3d 878 (Ct.App.2008); State v. Romero-Garcia, 139 Idaho 199, 75 P.3d 1209 Previously, this Court has stated that "[w]here the record shows tha......
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...Rule 8(b) may be severed under Idaho Criminal Rule 14, if conducting a joint trial would be prejudicial. State v. Gamble, 146 Idaho 331, 337, 193 P.3d 878, 884 (Ct. App. 2008) ; I.C.R. 14. As provided by Idaho Criminal Rule 14, a "court may order the state to elect between counts, grant sep......
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