State v. Lopez

• Decision Date: 06 September 2001
• Docket Number: No. 00-0238.,00-0238.
• Citation: 633 N.W.2d 774
• Parties: STATE of Iowa, Appellee, v. Pablo Gabriel LOPEZ, Appellant.
• Court: Iowa Supreme Court

633 N.W.2d 774

STATE of Iowa, Appellee, v. Pablo Gabriel LOPEZ, Appellant.

No. 00-0238.

Supreme Court of Iowa.

September 6, 2001.

Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, William E. Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.

Kent A. Simmons, Davenport, for appellant.

LAVORATO, Chief Justice.

Pablo Gabriel Lopez appeals from a judgment of conviction and sentence on charges of robbery in the first degree, possession with intent to deliver a controlled substance, and failure to affix a drug tax stamp. Following a bench trial, the district court found Lopez guilty of these charges.

On appeal, Lopez contends the district court abused its discretion in denying his request for substitute counsel. He also contends he should receive a new trial due to the State's failure to notify him of his right to contact the Mexican consulate. In addition, he raises a number of issues based on his allegation of ineffective assistance of counsel. Finally, he contends there was insufficient evidence to support a conviction of first-degree robbery.

We affirm.

I. Facts.

The district court made detailed findings of fact regarding the charges, and substantial evidence supports those findings. Those facts reveal the following.

On August 18, 1999, sometime after 10:30 p.m., Lopez and Danny Burton confronted Ryan York on the steps of an apartment building in Davenport, Iowa. Lopez circled around behind York while Burton stood on the steps below and in front of York. Lopez demanded that York give up his bracelet and necklace. To reinforce that demand, Burton showed York that he had a handgun. Lopez repeated his demand. Because of the implied threat of serious injury from the gun, York laid down the jewelry, which Burton took. Burton and Lopez then left the area.

Shane Schwiesow saw and heard what happened. He testified to Lopez's demand, Burton's display of the gun to back up Lopez's demand, York's yielding to the demand, and Burton's action in picking up the jewelry.

Gary Morehouse, who was in the car that brought Lopez, Burton, and him to the apartment, testified that Burton had the gun when Burton got out of the car. Morehouse also testified that Burton said he was going to rob York.

On September 2, police detective William J. Thomas contacted Lopez at Lopez's place of employment. When Thomas asked Lopez for some identification, Lopez took out his billfold and opened it. At that point, Thomas saw what appeared to be small packets of white powdery substances. Thomas asked to search the billfold, and Lopez consented. Thomas found six individually wrapped packets of what he thought was cocaine. Tests later proved Thomas was correct. The total weight of the cocaine was 1.41 grams. There were no drug tax stamps attached to the cocaine.

II. Proceedings.

In a trial information, the State charged that Lopez and Burton committed or aided and abetted the commission of first-degree robbery on or about August 18, 1999. See Iowa Code §§ 703.1; 711.1(1), (2), (3), .2 (1999). The same trial information additionally charged that on September 2, 1999, Lopez possessed crack cocaine with intent to distribute. See Iowa Code §§ 124.401(1)(c)(3), .206(2)(d). Finally, the trial information alleged that Lopez, on September 2, 1999, possessed, as a dealer, crack cocaine to which no appropriate drug tax stamp had been affixed. See Iowa Code §§ 453B.1(3)(d), .3, .7(4), .12 All parties agree that Lopez is a Mexican national.

On December 16, the matter came before district judge James R. Havercamp for a plea proceeding. Trial was scheduled for December 20.

At the outset of the proceedings, defense counsel informed the court that Lopez wanted to change lawyers because of a breakdown in communications between Lopez and him. Counsel also advised the court that Lopez was willing to waive speedy trial if the court would appoint him a new lawyer.

The court quizzed counsel as to his preparation for the case and whether he had discussed trial strategy with Lopez. The court then gave Lopez an opportunity to tell him what the problem was.

The court subsequently denied Lopez's request for substitute counsel, noting that there was no reason to remove defense counsel and that trial was only four days away.

Following a recess, the court reconvened to address Lopez's waiver of a jury trial. The State raised no objection. Following a colloquy with Lopez, the court permitted the waiver.

The case proceeded to trial on December 20. Before hearing the evidence, district judge James E. Kelley conducted a second colloquy regarding the jury trial waiver. The court approved the waiver, determining that Lopez understood his right to a trial by jury and finding that Lopez had knowingly and intentionally waived that right.

Several days later, judge Kelley in a written decision found Lopez guilty of all charges.

The day before sentencing, Lopez filed a pro se motion for new trial. He alleged that the police were guilty of witness tampering and coercion, thereby denying him a fair trial. Lopez's attorney also filed a motion for leave to file an untimely motion in arrest of judgment. The motion alleged that the police knew Lopez was a Mexican national and that, at the time of Lopez's arrest, the police did not provide Lopez with an opportunity to contact the Mexican consulate in violation of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77 [Vienna Convention].

Following a hearing on both motions, judge Kelley found there was sufficient evidence to support the verdicts and that there was no evidence of witness tampering or coercion.

Regarding the issues in the motion in arrest of judgment, judge Kelley concluded Lopez had no individual right to contact the consular office and therefore no right that could have been violated. Additionally, the court determined that if a right had been violated, there was no prejudice.

Thereafter, the court pronounced judgment and sentence, and this appeal followed.

III. Request for Substitute Counsel.

A. Scope of review. Our review of a district court's denial of a request for substitute counsel is for abuse of discretion. State v. Martin, 608 N.W.2d 445, 449 (Iowa 2000). To establish an abuse of discretion, Lopez must show that "the court exercised the discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997).

B. Applicable law. The Sixth Amendment right to counsel does not guarantee a "meaningful relationship between an accused and his counsel." Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1617, 75 L.Ed.2d 610, 621 (1983). To justify the appointment of substitute counsel, a defendant must show sufficient cause. Martin, 608 N.W.2d at 449. "Sufficient cause includes `a conflict of interest, irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.'" Id. (quoting State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994)).

In determining whether to grant a request for substitute counsel, "the court must balance `the defendant's right to counsel of his choice and the public's interest in the prompt and efficient administration of justice.'" Id. (quoting Webb, 516 N.W.2d at 828). The court should not permit a defendant to manipulate the right to counsel to delay or disrupt the trial. United States v. Swinney, 970 F.2d 494, 499 (8th Cir.1992). Additionally, the court should not allow "last-minute requests to substitute counsel ... to become a tactic for delay." Id.; accord Webb, 516 N.W.2d at 828

. For these reasons, the court has considerable discretion in ruling on a motion for substitute counsel made on the eve of trial. State v. Brooks, 540 N.W.2d 270, 272 (Iowa 1995).

Ordinarily, a defendant must show prejudice when the court denies a motion for substitute counsel "unless [the defendant] has been denied counsel or counsel has a conflict of interest." Id. Because Lopez does not assert either ground, he must show prejudice. See id.

C. Analysis. As mentioned, at a hearing shortly before trial, Lopez's attorney orally relayed to judge Havercamp that Lopez wanted new counsel because of a breakdown in communication. The court first noted that the trial was scheduled to begin in four days. The court then inquired of defense counsel whether he (1) had represented Lopez since Lopez was charged, (2) had investigated the facts and circumstances of the case, (3) had taken those depositions that counsel felt were appropriate, and (4) was prepared for trial. Counsel answered affirmatively to each of these questions.

The discussion continued:

COURT: You told me that there are— some of his concerns are there seems to be some discrepancies between police reports and deposition testimony.

DEFENSE COUNSEL: That's correct, your honor.

COURT: You're prepared to point those out to the jury?

DEFENSE COUNSEL: Yes, your honor.

COURT: You and he have discussed the trial strategy?

DEFENSE COUNSEL: On several occasions, your honor, yes.

COURT: And is there any disagreement with respect to that strategy? I notice that the co-defendant has been severed from trial.

DEFENSE COUNSEL: No, your honor, not that I can tell.

COURT: All right. Then why don't you tell me what's the problem, Mr. Lopez?

DEFENDANT: Yes, sir. I was ready to sign the plea agreement, but I feel that I'm guilty of the charge of robbery in first degree and also the drugs. I mean, I can pay for that, I mean in jail. I'm sorry, but I've been trying to learn with a dictionary since I'm in here.

I checked my papers just before they got me from my cell, and I seen that somebody changed the words from the depositions, and I like approval on paper, so I would like you to see those papers.

COURT: Well, this is what I pointed out. There may—what you're talking about is you've got minutes of testimony of what the—maybe some police reports of what the police are

...