State v. Madrid, 2017

• Decision Date: 28 April 1970
• Docket Number: No. 2017,2017
• Citation: 468 P.2d 561,105 Ariz. 534
• Parties: The STATE of Arizona, Appellee, v. Demetrio MADRID, Appellant.
• Court: Arizona Supreme Court

Page 561

468 P.2d 561

105 Ariz. 534

The STATE of Arizona, Appellee, v. Demetrio MADRID, Appellant.

No. 2017.

Supreme Court of Arizona, In Division.

April 28, 1970.

Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., for appellee.

Robert Wertsching, Phoenix, for appellant.

McFARLAND, Justice:

Appellant Demetrio Madrid, hereinafter referred to as the defendant, was tried and convicted on the first count for burglary in the first degree, and assault with a deadly weapon on the second count, and was sentenced to serve fifteen to twenty years in the Arizona State Penitentiary on each count, to run concurrently. From his conviction and sentence he appeals.

Defendant was represented throughout all the proceedings by the office of the Public Defender. On the day fixed for trial--August 26, 1968--after several prior postponements, the defendant personally asked for a continuance, and requested substitution of counsel. He expressed extreme dissatisfaction with the several attorneys who had worked on his case, and he was of the opinion that he would not receive proper representation from anyone in the Public Defender's office. The County Attorney strenuously objected, and understandably so, since he was prepared for trial and had his witnesses present.

The defendant not only moved for substitution of attorneys, but also requested that Henry Florence, Esq., a member of the Bar in private practice, be appointed to represent him. It is needless for our purpose here to embark upon a discussion as to whether an indigent defendant's right to counsel extends to the point that he may hand-pick an assigned attorney, because the court granted Madrid's motion. Following is a portion of the trial judge's oral decision:

'We will, therefore, unless you provide your own attorney, relieve the Public Defender's Office from further responsibility, and appoint counsel from the list available here in Maricopa County of practicing attorneys. At your request, we will first attempt to ascertain whether Mr. Florence is willing to represent you as the appointed attorney. If not, we will then appoint one of the others from the list which you have heard.'

Apparently Mr. Florence was willing to undertake Madrid's defense because by minute entry of the same day, August 26, the court formally appointed him attorney for the defendant, and relieved the Public Defender from all further responsibility. However, two days later the Public Defender filed a motion for reconsideration of the court's order--and requested that the Public Defender be re-appointed as Madrid's attorney. Why the Defender would seek to regain a recalcitrant, dissatisfied client does not appear in the record. In any case, on September 18, 1968, after a hearing, and over the objections of Madrid, the court granted the Public Defender's motion. At the subsequent trial the Public Defender did represent Madrid, although the defendant continued his objection to the arrangement. On this appeal he is represented by assigned counsel other than the Public Defender.

Madrid's newly-appointed attorney did not participate in the proceedings on the Public Defender's motion, choosing to leave the entire matter to the discretion of the court, however, the County Attorney actively joined the Public Defender in urging the court to grant the motion. It is understandable that the State should oppose the original motion for substitution and the resulting continuance, since it was prepared to try the case on that date. But for the prosecution to participate in the selection or rejection of its opposing counsel is unseemly if for no other reason than the distasteful impression which could be conveyed.

The record shows that a copy of the motion for re-examination and determination of counsel was mailed to Henry Florence, defendant's attorney of record; however, it does not show whether he was notified of the date of the hearing. Both the Public Defender and the County Attorney appeared in support of the motion, but Defendant's attorney was not present at the hearing, as is shown by the record:

'THE COURT: The record indicates that Mr. Florence was appointed, and I assumed he would be speaking for the Defendant in relating to this motion also. Have you had any contact with him?

'MR. NICHOLLS: I haven't had any contact with Mr. Florence.

'THE COURT: Does he have any intention of being here?

'MR. CRAMPTON: Your Honor, I have spoken very briefly with Mr. Florence, and it was his position that he would wait until after the result of this motion, and he was not particularly interested in participating in this proceedings.

'THE COURT: Is the Defendant present?

'MR. NICHOLLS: Yes, the Defendant is present.

'THE COURT: Very well. We'll hear such matters as you wish to present.'

The defendant was thereafter sworn and testified in his own behalf, setting forth his reasons why the motion should not be granted. The question of representation of counsel at critical stages of a proceeding is a constitutional right. In United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the Court stated:

'As early as Powell v. Alabama, supra, (287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55, 84 A.L.R. 527) we recognized that the period from arraignment to trial was 'perhaps the most critical period of the proceedings * * *,".

The court in the instant...