State v. Paris-Sheldon

• Decision Date: 15 March 2007
• Docket Number: No. 2 CA-CR 2006-0015.,2 CA-CR 2006-0015.
• Citation: 214 Ariz. 500,154 P.3d 1046
• Parties: The STATE of Arizona, Appellee, v. Jill Irene PARIS-SHELDON, Appellant.
• Court: Arizona Court of Appeals

154 P.3d 1046

214 Ariz. 500

The STATE of Arizona, Appellee, v. Jill Irene PARIS-SHELDON, Appellant.

No. 2 CA-CR 2006-0015.

Court of Appeals of Arizona, Division 2, Department B.

March 15, 2007.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Kathryn A. Damstra, Tucson, Attorneys for Appellant.

Robert J. Hooker, Pima County Public Defender, By Nancy F. Jones, Tucson, Attorneys for Appellee.

OPINION

BRAMMER, Judge.

¶ 1 A jury found appellant Jill Irene Paris-Sheldon guilty of two counts of disorderly conduct. Paris-Sheldon argues on appeal the trial court erroneously denied her motion for substitute counsel and motion to dismiss. She also asserts the jury selection procedure was improper and the court erred when it denied her motion for a judgment of acquittal made pursuant to Rule 20, Ariz. R.Crim. P., 17 A.R.S. Finding no error, we affirm.

Factual and Procedural Background

¶ 2 On appeal, "[w]e view the facts in the light most favorable to sustaining the verdict[s]." State v. Cropper, 205 Ariz. 181, ¶ 2, 68 P.3d 407, 408 (2003). On September 8, 2003, Pima County Sheriff's deputies responded to a report of a "possible suicide threat" at a trailer belonging to Bud Love. Paris-Sheldon had been living in the trailer with Love and was present when the deputies arrived. She initially denied any firearms were in the trailer but admitted a revolver found on top of the television set belonged to her. The deputies unloaded the revolver, placed the ammunition in the freezer, without telling Paris-Sheldon where they had put the ammunition, and left the premises.

¶ 3 That same day, Frank Palmer had been visiting his friend, Gary Hyatt, Love's neighbor. Palmer had been friends with Paris-Sheldon for about four years, and the two of them had worked together. Palmer went to Love's trailer to find out what had happened, and he and Paris-Sheldon began talking and drinking. Paris-Sheldon was packing items from the trailer and moving them to her truck while he sat at the kitchen table. Palmer testified there was a revolver and a box of ammunition on the kitchen table and Paris-Sheldon had told him she "had worked on the gun and made it so it had a hair-trigger on it." He stated he had had "three or four shots of whiskey and probably about four or five beers" when he "saw [Paris-Sheldon] leave the trailer at one point and then come back in and, bam, [he] got shot in the face." When she came into the trailer, he could "see that she was holding something in front of her, . . . but it was ... so quick. . . . [A]s soon as she stepped in the door it was like instantaneous, the gun went o[ff]."

¶ 4 Gary Hyatt testified he had heard a loud pop, "like someone had slammed the trailer door," before "[Paris-Sheldon] came over and told [him] that [s]he had shot [Palmer] and for [him] to call 911." While Hyatt was on the telephone with the 911 operator, he heard what he believed to be a gunshot, and then "lock[ed][his] doors and turned out [his] lights and went and got [his] pistol." The same deputies who had come earlier in the day responded to Hyatt's 911 call and saw Paris-Sheldon exiting Love's trailer as they arrived. She initially told the deputies "that nobody had been shot," but when asked where the revolver was, she stated she had shot Palmer and "thrown [the gun] near a truck." The deputies then took Paris-Sheldon into custody.

¶ 5 A grand jury indicted Paris-Sheldon on charges of disorderly conduct and attempted first-degree murder in CR-20033007. On the first day of trial, following Paris-Sheldon's rejection of the state's plea offer, the court granted the state's motion to dismiss all charges without prejudice, but denied Paris-Sheldon's motion to dismiss them with prejudice. Approximately one month later, in April 2004, a second grand jury charged Paris-Sheldon with aggravated assault with a deadly weapon or dangerous instrument, aggravated assault causing serious physical injury, disorderly conduct, and attempted second-degree murder in this case, CR-20041301.

¶ 6 Approximately eight months later, Paris-Sheldon moved to dismiss the disorderly conduct and attempted murder charges in this case, arguing, pursuant to Rule 16.6(a), Ariz. R.Crim. P., 16A A.R.S., that the state had sought to dismiss the charges in CR-20033007 to avoid the speedy trial requirements of Rule 8, Ariz. R.Crim. P., 16A A.R.S. Although argument on the motion was scheduled, it apparently was never held, and the trial court did not rule on the motion before trial. On the first day of trial, before a different judge, Paris-Sheldon brought the motion to the court's attention. The court stated it was "not prepared to rule on the motion," but noted, "we'll have an appellate record," and permitted the trial to proceed. The court granted the state's motion to dismiss the attempted second-degree murder charge with prejudice on the third day of trial.

¶ 7 The jury did not reach a verdict on the aggravated assault charges but found Paris-Sheldon guilty of the lesser-included offense of disorderly conduct as to Palmer and of disorderly conduct as to Hyatt. The jury found both offenses to be of a dangerous nature. The trial court sentenced Paris-Sheldon to concurrent, presumptive prison terms of 2.25 years for each count. This appeal followed.

Discussion

Motion for Substitute Counsel

¶ 8 Paris-Sheldon first contends the trial court erroneously denied her motion requesting substitute counsel. We review a trial court's denial of a defendant's request for substitute counsel for a clear abuse of discretion. See State v. Moody, 192 Ariz. 505, ¶ 11, 968 P.2d 578, 580 (1998). A trial court abuses its discretion if it fails to inquire into the basis for the defendant's dissatisfaction with counsel or fails to conduct a hearing on the defendant's complaint after being presented with specific factual allegations in support of the request for new counsel. See State v. Torres, 208 Ariz. 340, ¶¶ 7-8, 93 P.3d 1056, 1059 (2004).

¶ 9 The Sixth Amendment to the United States Constitution entitles a criminal defendant to competent representation but does not guarantee a defendant "counsel of choice," or "a meaningful relationship with his or her attorney." Moody, 192 Ariz. 505, ¶ 11, 968 P.2d at 580. In deciding whether to grant a request for substitute counsel, a trial court must therefore consider several factors, including

whether an irreconcilable conflict exists between counsel and the accused, and whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of the defendant to change counsel; and quality of counsel.

Id., quoting State v. LaGrand, 152 Ariz. 483, 486-87, 733 P.2d 1066, 1069-70 (1987).

¶ 10 On the morning of the first day of trial, November 1, 2005, Paris-Sheldon called the trial court's office concerning her appointed attorney. When the court later questioned her about the telephone call in open court, she stated she wanted to "fire" her attorney "and have a change of counsel." The court further questioned her concerning the basis for her request, and she stated her attorney had lied to her and "failed to investigate the case." She asserted her attorney had maintained she "had a good defense" until a recent meeting when he told her she "had no defense, and he had done nothing." She was initially unable to recall when that meeting had occurred but later stated she "believ[ed] it was the 19th [of October]." She also stated she had, at that time, asked her attorney to withdraw from the case, although her attorney asserted she did not ask him to do so until the Friday before trial. When queried by the court, Paris-Sheldon's attorney stated he was prepared for trial and denied having told her she "had a good defense." The court denied Paris-Sheldon's motion, stating her request was not timely and "[her attorney was] prepared to go to trial."

¶ 11 Paris-Sheldon asserts the trial court's inquiry into the basis for her request for new counsel was improper because it was "limited" and "based solely on its being untimely ... , because timing is only one of several relevant factors the court is to consider." Paris-Sheldon cites no authority, however, and we find none, requiring a trial court to make explicit findings in support of its decision to deny a motion for substitute counsel. All Torres requires is for the court to "inquire [on the record] as to the basis of a defendant's request," and, if necessary, conduct a hearing to determine whether substitution is proper. Torres, 208 Ariz. 340, ¶ 7-8, 93 P.3d at 1059. We find nothing improper in the procedure the court followed here; it explored the basis of Paris-Sheldon's reasons supporting her motion for new counsel and, albeit informally, conducted a hearing to evaluate those reasons by questioning both her and her attorney. Paris-Sheldon does not explain what other pertinent evidence or information would have come to light had the court conducted a more formal or extensive hearing.

¶ 12 Paris-Sheldon also contends the trial court's inquiry revealed evidence demonstrating "a breakdown of communication and an irreconcilable conflict ... between [Paris-Sheldon] and her appointed counsel." "[W]hen there is a complete breakdown in communication or an irreconcilable conflict between a defendant and his appointed counsel, that defendant's Sixth Amendment right to counsel has been violated." Id. ¶ 6, 93 P.3d 1056. "The types of communication breakdowns that constitute `total breakdowns' defy easy definition." United States v. Lott, 310 F.3d 1231, 1249 (10th Cir.2002). "As a general matter, however, we believe that to prove a total breakdown in communication, a defendant must put forth evidence of a severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not...