State v. Graham
| Decision Date | 29 November 2012 |
| Docket Number | No. 20100827–CA.,20100827–CA. |
| Citation | 291 P.3d 243,722 Utah Adv. Rep. 35 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Jerry L. GRAHAM, Defendant and Appellant. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Randall W. Richards and Jason B. Richards, Ogden, for Appellant.
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee.
Before Judges ORME, ROTH, and CHRISTIANSEN.
¶ 1 Defendant appeals from his conviction on two counts of unlawful sexual activity with a minor. SeeUtah Code Ann. § 76–5–401 (2008). Defendant claims that his waiver of the right to counsel at trial was not knowing and voluntary and that both of his trial attorneys were constitutionally ineffective. We affirm.
¶ 2 Defendant was charged in August 2008 with two counts of unlawful sexual activity with a minor. Over the course of his prosecution, Defendant proved to be difficult. For example, his first court appearance was delayed because he refused to appear, and his preliminary hearing was postponed six times at his request.
¶ 3 At a pretrial conference held in December 2009, Defendant requested a bench trial and waived his right to a jury trial. After the court granted Defendant's request, Defendant's first counsel 1 stated that he wanted to “make a record” concerning a disagreement that he and Defendant had about which witnesses to call at trial. First counsel stated that Defendant wanted to call several witnesses, including Defendant's ex-wife, who in counsel's judgment would not provide admissible testimony, would make the minor victim “look[ ] even more vulnerable,” and would “do more harm than good.” Defendant then raised several concerns he had with first counsel, one of which was that first counsel illegally took money from clients in other cases. First counsel interrupted and told Defendant that he was “lying on the record.” Defendant requested that the court order first counsel to subpoena his requested witnesses. The court refused the request, telling Defendant it would not “order your counsel to take a different trial strategy.” Defendant then asked the court to dismiss first counsel, claiming that there was a “conflict of interest” and that counsel was “not defending [him] to his utmost.” The court denied that request as well.
¶ 4 When Defendant's bench trial commenced two days later, Defendant informed the court that “[first counsel] is hereby removed as my attorney as of today.” He asked the court to appoint him a new attorney and to subpoena his requested witnesses. First counsel responded by explaining that he did not want to call Defendant's requested witnesses “[s]ince it comes down to strategy, and strategy being mine and mine alone, I will not add to the burden, even though he thinks it's not adding to his burden, by calling a witness who will make him look worse than he already does.” First counsel stated that he did not believe that he and Defendant had an actual conflict and explained, “The only conflict is he disagrees with me as [to] strategy.”
¶ 5 The court agreed with first counsel, stating, Defendant initially ignored these options and continued to request that another lawyer be appointed, all the while refusing to waive his right to counsel. The court reiterated to Defendant that he could avail himself of the assistance of first counsel or he could choose to represent himself. Defendant stated that if limited to those choices, he would represent himself. Despite that statement, however, Defendant refused to sign a waiver of counsel.
¶ 6 Trial began, and the prosecution gave its opening statement. Immediately after, Defendant informed the court that he was willing to waive his right to counsel and to sign a waiver to that effect. The court conducted the appropriate colloquy to ensure that the waiver was both knowing and voluntary. After the waiver, first counsel was appointed to act as standby counsel. The court explained to Defendant, Defendant requested a continuance to prepare his defense. The prosecutor objected, “I just don't think that you get to waive your right to Counsel on the morning of trial, frankly after we've already started trial, and then ask for a continuance because you have a difference of opinion as to strategy.” The court denied the continuance but informed Defendant that it would be willing to reconsider the motion at the close of the State's case.
¶ 7 The first witness called by the State was the victim. She testified that Defendant engaged her in sexual activity on numerous occasions during a three-month period in 2004. She described three of the incidents in particular, offering approximate dates, locations, and details. The State also called the police officer who initially spoke with Defendant about his involvement with the victim, a discussion initiated by Defendant after the police were called to the home of a relative of the victim because an “emotionally distraught” Defendant was pacing in the backyard, ranting about the “betrayal of his beliefs.”
¶ 8 Defendant cross-examined both witnesses, conferring with first counsel multiple times throughout his examination.2 During his cross-examination of the police officer, Defendant seemingly attempted to pose a hypothetical to the officer. The prosecutor objected multiple times on relevance grounds. First counsel then interjected, apparently to correct Defendant about a misunderstanding of fact. Defendant responded,
¶ 9 When Defendant later attempted to ask the officer about a conversation that the officer had with a witness in the course of his investigation, the court sustained a hearsay objection. Defendant asked first counsel, “It's hearsay is what she said?” First counsel responded, “It's hearsay.” Defendant and first counsel proceeded to confer off the record after Defendant asked how he could “get this information” into evidence. Defendant then asked first counsel on the record whether he would need to call the witness directly to obtain information about what the witness had told the officer. This exchange followed:
[First counsel]: If she was a good witness, one you would call—
[Defendant]: Hold on. No, no, no, sir, I didn't ask you character. I said she would—
[First counsel]: Well, I'm not going to answer in a half assed fashion, so don't ask me a question in a half ass—
[Defendant]: Whoa, half ass.
Defendant and first counsel continued to argue on the record. First counsel noted Defendant's “belligerence” and “maltreatment” of him and claimed that Defendant had called him “racist.” Defendant told the court that he had accused first counsel of being “biased” but not “racist.”
¶ 10 During this argument, the court repeatedly asked Defendant to move on and continue questioning the officer. Defendant asked the court to rule on whether “biased” meant “racist” and refused to ask the officer any further questions. First counsel also urged Defendant to move on, saying, When Defendant refused to proceed with his cross-examination of the officer, the court threatened to cut off the questioning. Defendant again asked the court to continue the trial. After that request was denied, Defendant asked the court to allow him to call a witness in order to prove that he had not called first counsel racist. In the ensuing discussion, first counsel referred to Defendant as a “frustrating individual” and warned him that he was “wasting colossal amounts of time” and “prejudicing [himself] in ways we can't even begin to describe.” The court finally ended the discussion and called a recess.
¶ 11 After the recess, first counsel apologized to the court and to Defendant for his outburst. The court agreed to consider “whether there isn't a conflict at this point” entitling Defendant to new counsel. Defendant responded by again asking for a continuance. Oddly, first counsel opposed the motion. He stated, “[Defendant]'s doing everything he can to create a conflict so that you will continue this case and get him someone else who is going to tell him the same thing.” Despite his objection, first counsel did acknowledge the obvious personal conflict between himself and Defendant but maintained that their issues stemmed from disagreements about strategy.
¶ 12 The trial judge noted that Defendant had been represented by first counsel in three recent cases assigned to that judge and informed Defendant, “As long as you were following your attorney's advice, I thought it went extremely well for you.” The court went on to tell Defendant,
I can't find any fault in what [first counsel]'s advised you insofar as what I've witnessed. But then when I watch your behavior, it seems like it's all against your best interest. It takes a monumental effort from a Court's standpoint to separate your behavior from what the facts of this case are because your behavior is very trying on the patience of everybody.
Defendant continued to insist that there was a conflict of interest. The court agreed that “there's a problem now.” First counsel was excused, but the court told Defendant, The trial was then adjourned.
¶ 13 The court held a hearing in January 2010 to appoint new counsel for Defendant. The court appointed second counsel to act only as standby counsel because of Defendant's earlier waiver of his right to counsel and, perhaps, because Defendant also contested the selection of second counsel. In April 2010, second counsel informed the court that Defendant asked him to...
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