State v. Salcido
| Decision Date | 18 October 2016 |
| Docket Number | No. 1 CA-CR 15-0566,1 CA-CR 15-0566 |
| Parties | STATE OF ARIZONA, Appellee, v. DAVID SALCIDO, Appellant. |
| Court | Arizona Court of Appeals |
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Mohave County
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
Arizona Attorney General's Office, Phoenix
By Chris DeRose
Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISIONJudge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Diane M. Johnsen and Chief Judge Michael J. Brown joined.
¶1 David Salcido appeals his convictions for four counts of molestation of a child, three counts of sexual abuse of a minor and one count of aggravated assault following a bench trial in which Salcido represented himself. Salcido argues he did not knowingly and intelligently waive his right to counsel or his right to a jury trial. He further argues the trial court was biased against him and that court erred when it denied a continuance, precluded the admission of evidence, denied Salcido meaningful self-representation and allowed the victim's parents to remain in the courtroom throughout the trial. For the following reasons, we affirm Salcido's convictions.
¶2 The state charged Salcido with four counts of molestation of a child, three counts of sexual abuse of a minor and one count each of indecent exposure, furnishing obscene or harmful items to a minor and aggravated assault. Salcido waived his right to counsel as well as his right to a jury trial and represented himself with the assistance of advisory counsel. The trial court acquitted Salcido of indecent exposure and furnishing obscene or harmful items to minors but found him guilty of the remaining charges. The court sentenced Salcido to an aggregate term of 46.75 years' imprisonment and Salcido now appeals. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A) (2016), 13-4031 (2010), -4033 (2010).
¶3 Salcido argues his waiver of counsel was not knowing and intelligent because the trial court did not make Salcido adequately aware of the dangers and disadvantages of self-representation.
¶4 A defendant has a constitutional right to waive counsel. State v. Moody, 192 Ariz. 505, 509, ¶ 22, 968 P.2d 578, 582 (1998). A waiver of counsel, however, "must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege[.]" Edwards v. Arizona, 451 U.S. 477, 482 (1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). See also State v. Evans, 125 Ariz. 401, 402, 610 P.2d 35, 36 (1980). A defendant who seeks to represent his or herself must understand (1) the nature of the charges, (2) the dangers and disadvantages of self-representation, and (3) the range of available punishment if convicted. State v. Dann, 220 Ariz. 351, 360, ¶ 24, 207 P.3d 604, 613 (2009). The court need not, however, "warn of every possible strategic consideration." State v. Cornell, 179 Ariz. 314, 324, 878 P.2d 1352, 1362 (1994). All that is required is that the court's warnings be sufficient to put a defendant on notice that self-representation is not advisable. Id. Finally, a defendant "need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation[.]" Faretta v. California, 422 U.S. 806, 835 (1975). A defendant's "technical legal knowledge" is not relevant to the determination of whether a waiver of counsel is knowing and intelligent. Id. at 836.
¶5 The record reveals Salcido made a voluntary, knowing and intelligent waiver of his right to counsel. During the colloquy on the waiver, Salcido informed the trial court he understood he had a right to counsel at all critical stages of the proceedings, but he wished to waive that right. The court told Salcido that it wanted to make sure Salcido understood the "realities" of self-representation, especially for a defendant in custody. The court reminded Salcido he had no legal education and had never represented himself. The court explained that an attorney has advantages over a defendant who chooses self-representation because of the attorney's legal education and experience and because of the simple fact that the attorney is not in custody. The court explained an attorney can interview witnesses and work more easily with other people to prepare a defense. The court explained the professional relationships an attorney has that can help the attorney obtain information necessary to aid in the preparation of the defense. The court also explained to Salcido that he would not have these advantages and would have difficulty accomplishing any of these things because he was in custody. Salcido acknowledged that he understood all of this.
¶6 The court then pointed out that unlike Salcido, an attorney understands the rules of evidence, how to introduce exhibits during trial and how to examine a witness in a manner that does not raise objections.
The court also noted that an attorney knows how to keep things "on track" and moving in the "right direction" during trial, and that pro se defendants who fail to do so can irritate jurors. Salcido again acknowledged that he understood all of this. Finally, Salcido informed the court he understood the seriousness of the charges and that he was "absolutely" aware that he faced a significant time in prison if convicted - even more time than the eighty-four years' imprisonment the court had just imposed in another case that involved similar charges. Despite all this, Salcido still wished to waive counsel and represent himself.1
¶7 The colloquy between Salcido and the trial court was more than sufficient to make Salcido aware of the dangers and disadvantages of self-representation, as well as make it clear that self-representation was not advisable, particularly because Salcido was in custody. The trial court was required to do nothing more.
¶8 Salcido also argues that the trial court denied him the right to effective self-representation because the trial court did not provide him adequate resources with which to represent himself. Salcido argues the court should have given him access to a law library, better advisory counsel, a book on courtroom procedure, and a paralegal. Salcido also argues the court failed to appoint an investigator in a timely fashion.
¶9 We find no error because the court afforded Salcido meaningful self-representation. The court appointed advisory counsel to assist Salcido at the same time it granted his motion to represent himself. When a defendant exercises the right to self-representation, a court affords that defendant meaningful self-representation when the court provides the defendant the assistance of an attorney. Bounds v. Smith, 430 U.S. 817, 828 (1977); State v. Murray, 184 Ariz. 9, 28, 906 P.2d 542, 561 (1995). The court need not also grant the defendant access to a law library. Id. Further, a defendant who represents his or her self does not have unlimited access to books, investigators, other personnel or materials the defendant believes are necessary to adequately represent his or her self. State v. Yanich, 110 Ariz. 172, 176, 516 P.2d 308, 312 (1973). Id. Finally, regarding an investigator, the court granted Salcido's request for an investigator the same day it granted Salcido's motion to represent himself.
¶10 Salcido also argues that his waiver of a jury trial was not knowing and intelligent. He argues he believed the court would act more as an "advocate" for Salcido than a jury. He argues the court failed to address a number of factors with him, and failed to conduct a specific colloquy before it accepted his waiver. Finally, Salcido argues his advisory counsel failed to explain to him the right to a jury trial and the consequences of waiving that right.
¶11 Salcido waived his right to a jury trial orally at a hearing approximately two months before trial. Salcido explained to the court that jury selection would be "an unnecessary distraction" and that waiving a jury would speed up the trial and save the time and "headache" associated with jury selection. He also believed the evidence would be shocking, embarrassing and "damaging" in a way that would affect unidentified persons personally and financially, and that it could adversely affect an unidentified potential witness who was still in school. Salcido also believed the case was so complicated and the evidence so confusing that the case was beyond the comprehension of an average juror. Salcido told the court, "I personally cannot envision any other way to go about trying this case than through a bench trial with a judge who possesses the experience and sharp thinking and knowledge needed to effectively rule on such a case." The state agreed to a bench trial and the trial court accepted Salcido's waiver.
¶12 A defendant may waive a jury trial orally in open court without submitting a written waiver. Ariz. R. Crim. P. 18.1(b)(2). Before a trial court accepts a waiver of a jury trial, the court must address the defendant personally, advise the defendant of the right to a jury trial and determine whether the waiver of that right is voluntary, knowing and intelligent. Ariz. R. Crim. P. 18.1(b)(1). "The pivotal consideration in determining the validity of a jury trial waiver is the requirement that the defendant understand that the facts of the case will be determined by a judge...
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