State v. Loftus

• Decision Date: 29 April 1997
• Docket Number: No. 19708,19708
• Citation: 566 N.W.2d 825,1997 SD 94
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Robert John LOFTUS, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 825

566 N.W.2d 825

1997 SD 94

STATE of South Dakota, Plaintiff and Appellee, v. Robert John LOFTUS, Defendant and Appellant.

No. 19708.

Supreme Court of South Dakota.

Considered on Briefs April 29, 1997.

Decided July 16, 1997.

Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, for Plaintiff and Appellee.

Michael Stonefield, Office of the Public Defender for Pennington County, Rapid City, for Defendant and Appellant.

SABERS, Justice.

¶1 Robert Loftus was convicted of first degree robbery, commission of a felony while armed with a firearm, attempted second degree rape, and aggravated assault. He appeals, arguing the trial court erred by 1) denying appointed counsels' motion to withdraw, and 2) allowing the introduction of other acts evidence. We affirm.

FACTS

¶2 On April 26, 1995, an armed man dressed in black clothes and black ski mask entered a bar and supper club northwest of Rapid City. He approached S.L., the manager, telling her, "This is a robbery, I'm here for your money, get me your money." After she gave him the money from the cash register, he instructed her to take him to the office because, he stated, "there's got to be a safe." As they walked toward the office, he held the gun to S.L.'s neck. Once in the office, he told her to lie on her stomach on the floor. He tried to tie her hands while she was on her stomach. Unsuccessful in his attempts, he told her to turn over onto her back. He tried to tie her hands in front of her stomach, and again failed. He told her to remove one pant leg, stating "that would help him tie [her] up better." After she complied, he struck her in the left side of the face, causing the right side of her head to strike a cinder block wall. He hit her again at least once and possibly three or four more times. ¹ By now he was on his knees in front of her and as he reached for his waistband, S.L. told him more employees would be arriving soon. He then left.

¶3 Two customers who arrived around the time of the robbery noticed a red car with tinted windows in the parking lot of the bar. Loftus bought a red Chevy Cavalier in early April of 1995 and had the windows tinted shortly thereafter. The Cavalier was repossessed on April 29, 1995. Loftus bought a red Hyundai with tinted windows in June 1995.

¶4 One piece of evidence retrieved from the bar was a piece of black plastic; it was eventually matched as the butt plate missing from a rifle pawned by Loftus on May 26, 1995.

¶5 A similar robbery at a liquor store in Box Elder led police to Loftus. Shortly before 11:00 p.m. on June 21, 1995, an armed man wearing dark clothing and a ski mask entered the liquor store. After the clerk, V.N., locked the door at his instruction, the robber helped her remove money from the cash register and place it in a bag. He made her open the safe and give him the money from her purse. He told her to lie on her stomach and he tied her wrists and ankles. He moved her to another room, placed her on her back and raped her. Before he left, he made her lie on her stomach again and tied her wrists to her ankles. She remained that way until the store owner arrived at 6:00 a.m. the next day.

¶6 A Box Elder resident called police when he learned from a news story that police were looking for a red vehicle with tinted windows. A few days before the Box Elder robbery, he saw a red Hyundai parked near the liquor store. He became suspicious when the driver laid down on the seat. He followed the car for a short while before losing sight of it. When he heard about the robbery, he returned to where he last saw the car, eventually locating it. He wrote down the license number and gave it to police. The car was registered to Loftus.

¶7 A warrant was issued for Loftus on June 24, 1995. The next day a highway trooper spotted a vehicle matching the description of Loftus' car. Once the trooper activated his lights and siren, Loftus fled and a high-speed chase through Rapid City and the Black Hills followed. He was apprehended after running from his car in a wooded area. A Division of Criminal Investigation agent observed the chase from a helicopter and saw Loftus remove something from his waistband and place it under an overhang. When another officer searched the area, he found an envelope containing a bundle of money.

¶8 Loftus was interviewed by two detectives after he was arrested. Initially, he denied any knowledge of the bar robbery or the liquor store rape and robbery. During a second interview with a different officer (Deputy Sheriff Glassgow), Loftus stated that another man committed both crimes and that he was only the driver and stood by the door while the crimes were being committed. However, he knew that the victims were tied up during the robberies. Additionally, both women testified that their attackers appeared to be alone. Loftus' statements were received at trial through Glassgow's testimony and their admissibility is not at issue in this appeal. At trial, Loftus urged an alibi defense and feebly explained that the only reason he admitted to being present at both crimes was because he was "talked into being the driver" by the first two officers who interviewed him: "I can't remember which detective it was, but it was brought up if I had only been the driver, that it would be different or they would be easier on me, on myself." He also testified that he told Glassgow he was the driver because Glassgow used vulgar language with him and threatened him with severe sentences:

Well, at that point in time I guess I was upset, I was angry at him because of the statements that were made, he was making it sound like I wasn't being honest with 'em and at that point, me and [Glassgow] had some run-ins in the past and I just figured that he was playing games with me more or less and it was the wrong thing to do, obviously. Now, I realize that, but I decided to play my games back with him more or less.

¶9 Loftus was charged in the Rapid City crime with first degree robbery, two counts of commission of a felony while armed with a firearm, ² attempted second degree rape, and aggravated assault. A Part II Information alleging that Loftus was an habitual offender was also filed.

¶10 Shortly before trial, Loftus wrote to the trial court and the Disciplinary Board of the State Bar to express dissatisfaction with his court-appointed counsel. The trial court held a hearing to address these complaints. See State v. Fender, 484 N.W.2d 307, 309 (S.D.1992) (remanding for a complete hearing on defendant's request for new counsel and requiring defendant to show "good cause" why his current counsel was inadequate). That aspect of the hearing is not before us on this appeal. At the same hearing, defense counsel moved for permission to withdraw, which was denied by the trial court. Defense counsel stated that Loftus compromised their relationship by mailing his complaint to the State Bar and their relationship was now of an adversarial nature. Loftus appeals the denial of this motion. ³

¶11 At trial, the State was allowed to submit evidence concerning the robbery and rape at the Box Elder liquor store. The trial court ruled this evidence was relevant 1) to show how the police were led to Loftus, and 2) to prove identity, modus operandi, and intent, and held that it was more probative than prejudicial. Loftus appeals this ruling, claiming the admission of that evidence deprived him of a fair trial.

¶12 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING COUNSELS' MOTION TO WITHDRAW.

¶13 Our standard of review on the denial of a motion for substituted counsel is whether the trial court abused its discretion. See State v. Iron Necklace, 430 N.W.2d 66, 79 (1988):

Appointment of substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process. A trial court's decision on a request for substitution or a continuance will not be reversed on appeal absent a showing of an abuse of discretion.

(Adopting standard from People v. Johnson, 144 Mich.App. 125, 373 N.W.2d 263, 268 (1985)); see also State v. Irvine, 1996 SD 43, p 13, 547 N.W.2d 177, 181:

In People v. Cumbus, 143 Mich.App. 115, 371 N.W.2d 493 (Mich.Ct.App.1985), the Michigan Court of Appeals reviewed the denial of a motion for substitute counsel based upon a breakdown in the attorney/client relationship. The court determined the breakdown was the fault of the defendant and ruled that the, "defendant was not entitled to substitution of counsel because the breakdown in his relationship was caused by defendant's admitted refusal to cooperate with his attorney." Cumbus, 371 N.W.2d at 496.

In Irvine, we stated that the defendant must show an "irreconcilable dispute regarding strategy or defense." Id. at p 15, 547 N.W.2d at 181.

¶14 In this case, Loftus fails to demonstrate such an irreconcilable dispute. The trial court questioned both of his court-appointed attorneys: ⁴

THE COURT: Have you prepared for trial?

STONEFIELD: Yes.

THE COURT: Until this was dropped in your lap, were you ready for trial?

STONEFIELD: We would have been, yes.

THE COURT: When you say we would have been, concerning the merits of the case, I'm talking about the evidence, what has changed because of these proceedings?

STONEFIELD: What has changed about the ability to actually cross examine witnesses and present evidence at trial, I would say nothing has changed in that respect. I would say, if you require us to, we could try this case next week.

....

THE COURT: All right, Ms. Janssen, were you ready for trial?

JANSSEN: Yes.

Here, as in Irvine, any breakdown alleged by counsel in the attorney/client relationship was Loftus' fault. "[A] defendant is not entitled to substitution of counsel where the breakdown ... is caused by his own refusal to cooperate with his attorney." 1996 SD 43 at p 15, 547 N.W.2d at 182. Furthermore, Loftus has not shown a "substantive disagreement...