State v. Priest, 20333

• Decision Date: 30 November 1995
• Docket Number: No. 20333,20333
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Steven Paul PRIEST, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 624

909 P.2d 624

128 Idaho 6

STATE of Idaho, Plaintiff-Respondent, v. Steven Paul PRIEST, Defendant-Appellant.

No. 20333.

Court of Appeals of Idaho.

Nov. 30, 1995.

Petition for Review Denied Jan. 31, 1996.

Wiebe & Fouser, Caldwell, for appellant. Scott E. Fouser, argued.

Alan G. Lance, Attorney General; Michael A. Henderson, Deputy Attorney General, Boise, for respondent. Michael A. Henderson, argued.

LANSING, Judge.

Steven Paul Priest was convicted of first degree murder and was sentenced to life imprisonment without the possibility of parole. On appeal, Priest contends the district court erred in denying Priest's pretrial motion for substitute counsel and his motion for a new trial, in instructing the jury, and in sentencing. Priest also argues that there was misconduct by the prosecutor in the State's opening statement and closing argument. We affirm.

A. The district court did not err in denying Priest's pro se pretrial motion for substitute counsel.

Two attorneys were appointed by the court to represent Priest, ¹ who was charged with first degree murder in the shooting death of Stan Trineer. On July 15, 1991, approximately one week before the scheduled trial date, Priest filed a pro se motion for appointment of new counsel. Priest alleged that conflicts with his attorneys and a complete breakdown of communication with them necessitated appointment of substitute counsel. The district court conducted a hearing at which Priest was allowed to explain his dissatisfaction with his attorneys. Priest said that his attorneys had refused to confer with him in the preparation of the defense, refused to file certain motions that he requested, and had not adequately investigated the case or subpoenaed witnesses in his favor. Priest told the court that he had filed a malpractice suit against the attorneys, which he believed created a conflict of interest. Priest also complained that when he refused to discuss with the attorneys the possibility of a plea bargain, one of the attorneys used an invective and said that it would not be the attorney's fault if Priest got the death penalty as a consequence of his refusal to plea bargain.

When questioned by the district court, Priest's attorneys corroborated that there had been no communication between them and their client for about three weeks, but explained that it was due to his refusal to speak with them, not to any unwillingness on their part. The attorneys stated that they had diligently investigated the case and pursued the leads given them by Priest. They acknowledged, however, that because of Priest's refusal to speak with them, they could not be prepared for trial the following week.

The district court found that Priest had not demonstrated a need for new counsel. Expressing disapproval of Priest's attempt to create a conflict of interest by suing his attorneys, the court noted that the lawsuit was premature, and therefore frivolous, because there had not yet been any outcome of the criminal proceedings on which a claim of damage or injury could be predicated. The court noted:

[T]o adopt the idea that a person, by simply filing a lawsuit against the attorney appointed to represent him, regardless of whether that lawsuit could even survive a motion to dismiss, can result in disqualification of counsel would lead to the situation in which some cases could never be tried. Because it could simply be a matter that a defendant could file against successive attorneys such a motion ... in any instance in which they disagreed with his concept of how the case should be handled and that attorney would be disqualified. That is not a rule of law that we're going to develop.

The district court found that the conflict between Priest and his attorneys was largely of Priest's own making and consisted primarily of disagreements about trial strategy. The court explained to Priest that trial strategy is primarily the responsibility of counsel after consultation with the client. The court also observed that defense counsel had filed a number of pretrial motions that were well-researched and briefed. It was the court's conclusion, therefore, that good cause for substitution of counsel had not been presented where counsel was not shown to be ineffective in pretrial representation.

Although the district court denied Priest's motion for new counsel, it granted a seven-week continuance of the trial to afford Priest and his attorneys the opportunity to reestablish communication and prepare for trial. The trial proceeded as rescheduled on September 4, 1991.

It is well settled that an indigent's right to court-appointed counsel includes the right to effective assistance of counsel, but it does not necessarily include the right to an attorney of one's own choice. State v. Clayton, 100 Idaho 896, 897, 606 P.2d 1000, 1001 (1980); State v. Browning, 121 Idaho 239, 244, 824 P.2d 170, 175 (Ct.App.1992). Upon a showing of good cause a trial court may appoint substitute counsel for an indigent, such decision lying within the discretion of the trial court. Id.; State v. Clark, 115 Idaho 1056, 1058, 772 P.2d 263, 265 (Ct.App.1989). An abuse of discretion will be found if the denial of such a motion results in the abridgement of an accused's right to counsel. State v. Carman, 114 Idaho 791, 793, 760 P.2d 1207, 1209 (Ct.App.1988), aff'd, 116 Idaho 190, 774 P.2d 900 (1989).

In the case before us we find no fault in the district court's decision to deny substitution of counsel but to grant a continuance of the trial. We agree with the district court's observation that a criminal defendant may not compel the court to appoint a new attorney by refusing to cooperate with his existing attorney or otherwise manufacturing his own conflict.

As support for his position, Priest relies heavily on Frazer v. United States, 18 F.3d 778 (9th Cir.1994). In that case, the defendant sought relief for ineffective assistance of counsel, claiming in his motion: "That his appointed trial attorney had called him a 'stupid nigger son of a bitch and said he hopes I get life. And if I continue to insist on going to trial I will find him to be very ineffective.' " Id. at 780. The Ninth Circuit Court of Appeals held that in light of these allegations the trial court erred in failing to hold an evidentiary hearing on the defendant's motion. The court stated that the facts alleged by the defendant, if proved, "would render so defective the relationship inherent in the right to trial counsel guaranteed by the Sixth Amendment that Mr. Frazer would be entitled to a new trial with a different attorney." Id. at 784.

Priest claims that his allegation that his attorney used abusive language when Priest refused to discuss the possibility of a guilty plea is indistinguishable from the situation presented in Frazer. We do not agree. The defense attorney's alleged conduct in Frazer included an abhorrent racial slur, suggesting that racial prejudice may have impaired counsel's dedication to vigorous representation of the client; a statement of counsel's hope that defendant would get a life sentence, indicating a complete failure of the duty of loyalty which has been described as "perhaps the most basic of counsel's duties," Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984); and an overt threat to deny Frazer any assistance if he refused to plead guilty. None of those factors are present in Priest's case. There is no allegation that Priest's attorney harbored any bias or prejudice against him, that he harbored or expressed any hope that there would be an adverse outcome of the trial for Priest, or that he threatened not to vigorously defend Priest to the best of the attorney's ability. What Priest has shown is that his attorney used invectives in expressing his frustration when Priest declined even to discuss the option of a plea agreement to eliminate the risk of a death penalty, which would be an option for the sentencing court if Priest were found guilty of the charged offense at trial. Where a client faces the risk of capital punishment, defense counsel will nearly always find it prudent to consider and discuss with the client the possibility of a plea bargain to remove that threat. Although abusive language is not to be condoned, in this context Priest has not shown any breach of his attorney's duty of loyalty or any unwillingness on the part of his attorney to zealously defend Priest following Priest's refusal to consider a plea bargain.

Accordingly, the district court's denial of Priest's motion for substitute counsel is affirmed.

B. The jury instruction defining reasonable doubt was not improper.

The district court gave to the jury the following instruction regarding reasonable doubt:

A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the State the burden of proving him guilty beyond a reasonable doubt. Reasonable doubt is not a mere possible doubt, because anything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. Reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.

This instruction is nearly identical to, and substantively indistinguishable from, the instruction that was approved for use in this state by the Idaho Supreme Court in State v. Holm, 93 Idaho 904, 908, 478 P.2d 284, 288 (1970), and again (with a slight modification substituting the words "a verdict of not guilty" for "an acquittal") in State v. Cotton, 100 Idaho 573, 576-77, 602 P.2d 71, 74-75 (1979). Nonetheless, Priest argues that use of this instruction...