State v. Thurlow
| Decision Date | 06 July 2011 |
| Docket Number | No. 33969.,33969. |
| Court | Idaho Court of Appeals |
| Parties | STATE of Idaho, Plaintiff–Respondent, v. Kenneth Eugene THURLOW, Defendant–Appellant. |
Molly J. Huskey, State Appellate Public Defender; Jason C. Pintler, Deputy Appellate Public Defender, Boise, for appellant.
Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy Attorney General, Boise, for respondent.
Kenneth Eugene Thurlow appeals from his judgment of conviction and fixed life sentence for first degree murder. For the reasons set forth below, we affirm.
In August 2005, Thurlow and Christopher Lewers went to a junkyard armed with concealed shotguns and baseball bats. The victim, who was working on his vehicle near the junkyard's garage, was shot in the head with a shotgun at close range. Prior to the shooting, Thurlow approached a caretaker, who was working in the junkyard garage, and asked the caretaker if he had any muriatic acid. The caretaker left the garage and went to his residence on the junkyard property to look for the acid. When he was unsuccessful in locating the acid, the caretaker began to walk back to the garage to notify Thurlow. However, as he was leaving his residence, he noticed Thurlow approaching. Thurlow told the caretaker that the victim was dead and asked for help loading the body into a nearby truck. The caretaker walked back toward the garage and observed the victim's body lying on the ground and Lewers standing nearby.
The caretaker informed Thurlow and Lewers that the truck was inoperable and, fearful for his life, fled the junkyard. After hiding out for several hours, the caretaker returned to the junkyard and called the police. During the caretaker's absence, Thurlow and Lewers stole several items from the victim's truck, left the victim's body behind, and sold the victim's possessions to an acquaintance later that night.
Thurlow was charged with first degree murder, and Lewers was charged with aiding and abetting. Thurlow was represented by one of the conflict public defenders for the county. Prior to trial, Thurlow filed a motion for appointment of co-counsel, which the district court denied. Thurlow went to trial and, at the conclusion of its case-in-chief, the state moved to amend the information to charge Thurlow in the alternative with first degree murder by aiding and abetting in the crime. The jury found Thurlow guilty of first degree murder. I.C. §§ 18–204, 18–4001, 18–4002, 18–4003(a), 18–4004.
The district court entered a judgment of conviction and imposed a fixed life sentence. The judgment of conviction contained two clauses indicating that Thurlow had waived his right to appeal during plea negotiations. The district court entered an amended judgment of conviction removing one of the erroneous waiver statements. A second amended judgment of conviction was then entered removing the other waiver clause. Thurlow appeals, arguing that the district court abused its discretion in denying his request for appointed co-counsel and in imposing an excessive sentence.
Thurlow's notice of appeal was not filed within forty-two days from his original judgment of conviction. Therefore, the state argues that this Court is without jurisdiction to entertain Thurlow's appeal.
Thurlow, presumably in anticipation of the state's jurisdictional argument, filed a motion with the Idaho Supreme Court seeking an order clarifying jurisdiction. At the Supreme Court's request, the state filed an answer. The Supreme Court entered an order maintaining jurisdiction of the appeal and indicating that the appeal would proceed on all issues. Therefore, we need not address the state's argument regarding the timeliness of Thurlow's notice of appeal.
Thurlow argues that the district court abused its discretion by refusing to grant his request for appointed co-counsel. Specifically, Thurlow contends the district court inappropriately focused on potential interference with the county's contracts for public defenders instead of examining the need for co-counsel. Although I.C.R. 44.3(2) governs the appointment of two attorneys in a capital case, the denial of a request for appointed co-counsel in a noncapital case is an issue of first impression in Idaho.
The Sixth Amendment does not require that more than one attorney be appointed for an indigent criminal defendant, unless the appointment of more than one attorney is necessary for the defendant to receive the effective assistance of counsel which is his or her right under that Amendment. Even in a capital case there is no blanket constitutional requirement of appointment of more than one attorney, although such a right may exist under the statutes of a particular jurisdiction. Generally, when an indigent defendant has been provided with an attorney at public expense, his or her request for additional counsel is committed to the trial court's discretion. Denial of a request for appointment of additional counsel is proper when the amount of preparation and investigation required to defend the case is not unduly burdensome. When the resources of one appointed counsel will not suffice to adequately represent a defendant, the appointment of cocounsel is proper.
21A AM.JUR.2D Criminal Law § 1115 (2008) (footnotes omitted).
Other states do not recognize an absolute right to appointment of co-counsel in noncapital cases, holding that appointment of co-counsel is allowed in situations where the record demonstrates that initial counsel was not adequately representing the accused. See People v. Lara, 86 Cal.App.4th 139, 103 Cal.Rptr.2d 201, 209 (2001) ; People v. Mitchell, 185 Cal.App.2d 507, 8 Cal.Rptr. 319, 323 (1960) ; State v. Chamberlain, 112 N.M. 723, 819 P.2d 673, 683–84 (1991) ; Aranda v. State, 640 S.W.2d 766, 771 (Tex.Ct.App.1982). Further, as mentioned above, other jurisdictions have held that an indigent defendant's request for appointment of co-counsel is left to the trial court's discretion. See State v. Chun, 70 Haw. 203, 766 P.2d 676, 677 (1989) ; State v. Sandlin, 61 N.C.App. 421, 300 S.E.2d 893, 896–97 (1983).
When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
In this case, Thurlow argued a motion before the district court to appoint co-counsel. Thurlow was represented by an attorney with the conflicts public defender contract for the county. The attorney argued primarily that the financial reimbursement of the contract precluded her from spending all of her time on Thurlow's case and that she also needed to simultaneously represent other clients.
The district court responded to this argument by noting that it did not want to interfere with the county's contract and that this issue may be better argued before the county's commissioners. However, the district court also stated several times that there had been no showing of ineffective representation. Additionally, the district court left the matter open for further review, noting that "at some point in time this court may recognize that the representation is simply not suitable and may have to intervene." The district court reviewed the nature of the case and authorized funds for an investigator, concluding:
I might also note that I think that it's been important for the court to extend the investigative resources in this case, which I normally don't do in any other case. And so to some extent I have already taken into account perhaps the unique and serious nature of this particular matter above and beyond other cases.
The district court addressed whether Thurlow was receiving effective assistance of counsel and concluded that he was. Thurlow has failed to show that the district court abused its discretion in denying Thurlow's request for appointed co-counsel.
Thurlow argues that the district court abused its discretion in imposing a fixed life sentence for first degree murder. Specifically, Thurlow asserts that his crime was not so egregious to warrant a fixed life sentence. Thurlow further contends that the district court did not properly consider other mitigating factors, including his mental health and drug addiction issues, and the lack of felony convictions in his criminal record.
An appellate review of a sentence is based on an abuse of discretion standard. State v. Burdett, 134 Idaho 271, 276, 1 P.3d 299, 304 (Ct.App.2000). Where a sentence is not illegal, the appellant has the burden to show that it is unreasonable, and thus a clear abuse of discretion. State v. Brown, 121 Idaho 385, 393, 825 P.2d 482, 490 (1992). A sentence may represent such an abuse of discretion if it is shown to be unreasonable upon the facts of the case. State v. Nice, 103 Idaho 89, 90, 645 P.2d 323, 324 (1982). A sentence of confinement is reasonable if it appears at the time of sentencing that confinement is necessary "to accomplish the primary objective of protecting society and to achieve any or all of the related goals of deterrence, rehabilitation or retribution applicable to a given case." State v. Toohill, 103 Idaho 565, 568, 650 P.2d 707, 710 (Ct.App.1982). Where an appellant contends that the sentencing court imposed an excessively harsh sentence, we conduct an independent review of the record, having regard for the nature of the offense, the character of the offender, and the protection of the public interest. State v. Reinke, 103 Idaho 771, 772, 653 P.2d 1183, 1184 (Ct.App.1982). When reviewing the length of a sentence, we consi...
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