State v. Vessey

• Decision Date: 22 October 1998
• Docket Number: No. 951820-CA,951820-CA
• Citation: 967 P.2d 960
• Parties: 354 Utah Adv. Rep. 43 STATE of Utah, Plaintiff and Appellee, v. Rodney Arthur VESSEY, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 960

967 P.2d 960

354 Utah Adv. Rep. 43

STATE of Utah, Plaintiff and Appellee, v. Rodney Arthur VESSEY, Defendant and Appellant.

No. 951820-CA.

Court of Appeals of Utah.

Oct. 22, 1998.

Rodney A. Vessey, Gunnison, Appellant Pro Se.

Jan Graham and Marian Decker, Salt Lake City, for Plaintiff and Appellee.

Before BILLINGS, GREENWOOD and ORME, JJ.

OPINION

BILLINGS, Judge:

Defendant appeals his conviction of rape of a child, a first degree felony, in violation of Utah Code Ann. § 76-5-402.1 (Supp.1998). We remand for a hearing on defendant's motion for substitution of his appointed counsel.

FACTS

Defendant was charged in February 1995, and received appointed counsel. Defendant's appointed counsel appeared at a pretrial hearing and at defendant's arraignment, where defendant pleaded not guilty. One day after his arraignment, defendant filed a pro se motion with the trial court requesting substitution of counsel. In the letter, defendant stated he felt counsel could not represent him because they had a "conflict of interest" and because counsel "refuses evidence I have brought forth ... for defence [sic] of my case." The trial court summarily denied defendant's motion for substitution of counsel, the case proceeded to trial, and defendant was convicted.

Defendant now appeals his conviction of rape of a child. Defendant argues the trial court erred in failing to investigate his request for substitution of counsel at trial, that he received ineffective assistance of counsel, that the prosecution failed to disclose exculpatory evidence, that the trial court erred in denying his motions for a new trial, and that the evidence at trial was insufficient to support the jury's verdict.

ANALYSIS

I. DID THE TRIAL COURT ABUSE ITS DISCRETION IN FAILING TO INQUIRE INTO DEFENDANT'S COMPLAINTS ABOUT HIS TRIAL COUNSEL, AND, IF SO, WAS THIS REVERSIBLE ERROR?

Three months before trial, defendant requested replacement of his appointed counsel claiming that his counsel refused to prepare for trial and that they had irreconcilable conflicts. Defendant argues that the court's failure to inquire into his request for substitution of counsel three months before trial was reversible error.

As we held in State v. Pursifell, 746 P.2d 270, 272 (Utah Ct.App.1987) (citations omitted), "[w]hether to appoint a different lawyer for an indigent defendant who expresses dissatisfaction with the court-appointed counsel ... is a matter committed to the sound discretion of the trial court and will be reversed only for abuse of discretion." Furthermore, this court held that when a defendant expresses dissatisfaction with counsel,

the court must make some reasonable, non-suggestive efforts to determine the nature of the defendant's complaints and to apprise itself of the facts necessary to determine whether the defendant's relationship with his or her appointed attorney has deteriorated to the point that sound discretion requires substitution or even to such an extent that his or her Sixth Amendment right would be violated but for substitution. Even when the trial judge suspects that the defendant's requests are disingenuous and designed solely to manipulate the judicial process and to delay the trial, perfunctory questioning is not sufficient.

Id. at 273 (citation omitted). In the instant case, the trial court did not conduct any questioning at all, but summarily denied defendant's request the same day it was filed. On appeal, the state concedes that the trial court abused its discretion by failing to conduct any meaningful inquiry into defendant's complaints about his counsel, and we agree.

However, the State argues that this error was harmless because defendant has not shown that he received ineffective assistance of counsel at his subsequent trial. Thus, we must determine whether a trial court's failure to investigate a defendant's timely pretrial request for substitution of appointed counsel is reversible error without a showing of actual ineffective assistance by the attorney who remains in the case. This presents an issue of first impression in Utah. Therefore, we look to other jurisdictions for guidance. ¹

Other jurisdictions are divided on this issue. ² The first line of authority holds that a trial court's failure to inquire into a defendant's request for substitution of counsel is per se reversible error. The second position, however, holds that a trial court's failure to inquire into a defendant's substitution request is reversible error only if the defendant can show that he actually received ineffective assistance from his appointed counsel at trial. ³ We prefer a middle ground, agreeing with the majority rule holding that a trial court's failure to investigate a defendant's timely substitution request is per se error, but eschewing actual reversal until an actual conflict is established between the defendant and counsel of a magnitude requiring substitution of counsel.

People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (Cal.1970) (en banc), is a leading case supporting this position. In Marsden, the trial court summarily denied a motion for substitution of counsel after a cursory examination of the defendant. See id. at 45. The trial court based its denial on its subsequent determination that defense counsel's conduct in the court room indicated competency. See id. at 46. The California Supreme Court reversed, stating:

A trial judge is unable to deal intelligently with a defendant's request for substitution of attorneys unless he is cognizant of the grounds which prompted the request. The defendant may have knowledge of conduct and events relevant to the diligence and competence of his attorney which are not apparent to the trial judge from observations within the four corners of the courtroom.

Id. at 47. The Marsden court concluded that the failure to inquire was clearly prejudicial. "Because the defendant might have catalogued acts and events beyond the observations of the trial judge to establish the incompetence of his counsel, the trial judge's denial of the motion without giving defendant an opportunity to do so denied him a fair trial." Id. at 49. Thus, the Marsden court held the failure to inquire into the complaints underlying a motion for substitution was by definition prejudicial to a defendant who claimed ineffective assistance.

Similarly, the District of Columbia Court of Appeals has held that failure to inquire merits reversal regardless of whether a defendant can show his right to effective assistance of counsel was actually violated. In Farrell v. United States, 391 A.2d 755, 761-62 (D.C.1978), that court articulated the rationale behind this approach.

By [summarily denying the motion for substitution], ... the trial court put appellant in the position of choosing between proceeding to trial with counsel who he contended was unprepared--a contention unrebutted of record because of the trial court's failure to properly inquire--or proceeding pro se. This the trial court may not do. If counsel was unprepared to give effective representation at trial, appellant was constitutionally entitled to the appointment of new counsel. Finding that the rulings of the trial court deprived appellant of his Sixth Amendment right to counsel, we hold that appellant's conviction cannot stand.

Id. at 762 (footnote omitted); see also United States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir.1995) (stating Sixth Amendment violation occurs when trial court's denial is clearly erroneous "or [court] made no inquiry into the reason for the defendant's request to substitute counsel"); Marsden, 84 Cal.Rptr. 156, 465 P.2d at 48-49 (reversing conviction for failure to inquire into substitution of counsel request because trial court's error deprived defendant of right to have ineffective assistance claim adjudicated); Farrell, 391 A.2d at 755 (reversing conviction where trial court failed to inquire into substitution request without examining harmfulness of error); City of Billings v. Smith, 281 Mont. 133, 932 P.2d 1058, 1063 (Mont.1997) (stating failure to make an initial inquiry into defendant's complaints about counsel was reversible error because it "foreclosed [defendant's] opportunity for a hearing" and remanded to trial court for inquiry to determine whether defendant "had substantial complaints"); Ohio v. Prater, 71 Ohio App.3d 78, 593 N.E.2d 44, 47 (Ohio Ct.App.1990) (holding failure to inquire into complaint of counsel was reversible error and remanding for evidentiary hearing on merit of defendant's complaints); State v. Bargas-Perez, 117 Or.App. 510, 844 P.2d 931, 932 (Or.Ct.App.1992) (ordering new trial because trial court's "failure to inquire into the nature of the conflict and evaluate the merits of [defendant's] request for a different attorney was reversible error" even where request was untimely); South Dakota v. Fender, 484 N.W.2d 307, 309-10 (S.D.1992) (reversing trial court's failure to inquire because it deprived defendant of opportunity to voice his complaints about counsel and remanding for evidentiary hearing to determine if defendant had good cause for requesting substitution); Melendez v. Salinas, 895 S.W.2d 714, 715 (Tex.Ct.App.1994) (remanding for hearing on merits of motion for substitution of counsel where trial court inquiry was insufficient to determine whether defendant had good cause for substitution).

By summarily denying defendant's motion in this case, the trial court put the defendant in the position of choosing between proceeding to trial with counsel whom he believed was unprepared and incompatible or proceeding pro se. If counsel was unprepared or unwilling to give effective representation at trial, defendant was constitutionally entitled to the appointment of new counsel. See Farrell, 391 A.2d at 762. We agree with the District of Columbia Court of Appeals that "timely judicial intervention at the pretrial stage constitutes an effective mechanism for the prevention of Sixth...