State v. Wareham
Decision Date | 10 August 2006 |
Docket Number | No. 20050412-CA.,20050412-CA. |
Citation | 2006 UT App 327,143 P.3d 302 |
Parties | STATE of Utah, Plaintiff and Appellee, v. Gregory Shane WAREHAM, Defendant and Appellant. |
Court | Utah Court of Appeals |
Autumn Fitzgerald, Fitzgerald & Fitzgerald, Moab, for Appellant.
Mark L. Shurtleff, Attorney General's Office, and Christopher D. Ballard, Assistant Attorney General, Salt Lake City, for Appellee.
Before Judges BENCH, BILLINGS, and THORNE.
¶ 1 Gregory Shane Wareham appeals his conviction on multiple criminal counts. We affirm each of Wareham's convictions, but reverse the enhancement of his driving under the influence (DUI) offense. See Utah Code Ann. §§ 41-6a-502, -503 (2005).
¶ 2 Wareham and Jennifer Malaska, the victim in this case, lived together in a domestic relationship from 1999 through 2003. The two continued to see each other after Wareham moved out of Malaska's home.
¶ 3 On March 24, 2004, Wareham and Malaska traveled from her home in La Sal, Utah, to Monticello, Utah, where Wareham was seeking employment. After Wareham met with his prospective employer, the pair purchased several bottles of alcohol and planned to go hiking. At some point, they abandoned this plan and returned to Malaska's house. Wareham left the house to visit a friend and returned, drunk, about an hour later. Upon returning, Wareham began to tear things off the walls and "ransack[ed] the house." Malaska felt physically threatened by Wareham's violent actions and described Wareham's outburst as unprovoked and irrational.
¶ 4 Wareham left the house again for about thirty minutes. Upon returning, he threw a log through the window and began punching and kicking Malaska after she let him in. The beating was severe, causing Malaska's teeth to penetrate her lip. Wareham then dragged Malaska out the front door by her hair and forced her into his truck. While in the truck, Wareham told Malaska that her daughter no longer needed a mother, and otherwise implied that he was going to kill Malaska. Wareham drove a short distance and stopped, at which point Malaska escaped and ran to police who had arrived at her house.
¶ 5 Wareham's version of events differs. He claims that upon his return from his friend's house, Malaska angrily accused him of stealing her bottle of Jaegermeister. She then instigated a fight and hit him with a porcelain lamp, leaving a deep gash on his hand. Wareham then went outside, but she ran after him and jumped in the front seat of his truck. He jumped in as well, assuming that even after this violent interaction, the two would proceed with plans to go camping.
¶ 6 On the day of trial, Wareham sought a continuance based, in part, on his dissatisfaction with the performance of his appointed counsel, William Benge. The trial court heard from Wareham and Benge regarding Wareham's dissatisfaction with Benge's performance, and concluded that trial could proceed with Benge as counsel. Wareham additionally sought to disqualify Benge as his counsel because Benge had formerly prosecuted Wareham for a DUI offense. As a result, Wareham asserted that he was unable to trust Benge to conduct his defense. The trial court did not inquire into the details of the prior prosecution and ruled that there was no legitimate conflict between Wareham and Benge.
¶ 7 Wareham raised this alleged conflict of interest again on the second day of trial. The trial court, aware of Wareham's dissatisfaction with Benge's performance, excused the jury and conferenced with Wareham and both attorneys to address tactical disputes between Benge and Wareham. During this conference, Wareham attempted to make a pro se motion for a mistrial. At this time, it was ascertained that Benge's prior prosecution of Wareham resulted in a 2002 guilty plea to a DUI offense. The court never expressly ruled on Wareham's mistrial motion and trial continued with Benge as Wareham's counsel.
¶ 8 Wareham was convicted of five offenses arising out of the March 24 incident: aggravated kidnapping, a first degree felony, see Utah Code Ann. § 76-5-302 (2003); DUI with prior offense enhancement, a third degree felony, see id. §§ 41-6a-502, -503; criminal mischief and assault, both class B misdemeanors, see id. §§ 76-6-106(2)(c) (2003), 76-5-102 (2003); and intoxication and open container in a vehicle, both class C misdemeanors, see id. §§ 76-9-701(1) (2003), 41-6a-526 (2005). Wareham now appeals.
¶ 9 Wareham argues that the trial court's reasonable doubt instruction misstated the law by including the word obviate. "`A challenge to a jury instruction as incorrectly stating the law presents a question of law, which we review for correctness.'" State v. Weisberg, 2002 UT App 434, ¶ 12, 62 P.3d 457 (quoting State v. Lucero, 866 P.2d 1, 3 (Utah Ct.App.1993)).
¶ 10 Wareham alleges that the trial court abused its discretion by denying Wareham's motion to disqualify counsel. A trial court's denial of a motion to disqualify counsel is generally reviewed for abuse of discretion. See Margulies v. Upchurch, 696 P.2d 1195, 1200 (Utah 1985). However, due to the "special interest in administering the law governing attorney ethical rules," a trial court's discretion in situations implicating those rules is "limited." Houghton v. Utah Dep't of Health, 962 P.2d 58, 61 (Utah 1998).
¶ 11 Wareham next argues that the court abused its discretion in denying him a continuance to locate a third character witness. "A trial court's decision to either grant or deny a continuance is clearly within its discretion." State v. Tolano, 2001 UT App 37, ¶ 5, 19 P.3d 400.
¶ 12 Wareham asserts that the trial court should have merged his kidnapping and assault charges. "Merger issues present questions of law, which we review for correctness." State v. Diaz, 2002 UT App 288, ¶ 10, 55 P.3d 1131.
¶ 13 Finally, Wareham claims that the presiding judge failed to remove the trial court judge after the trial court judge failed to recuse himself for disregarding Wareham's pro se filings. Issues of recusal present questions of law that we review for correctness. See State v. Alonzo, 973 P.2d 975, 979 (Utah 1998).
¶ 14 Wareham argues that the jury instructions inadequately explained the concept of reasonable doubt because they included the phrase "eliminate (or obviate) all reasonable doubt." Wareham bases his assertion of error on State v. Reyes, 2005 UT 33, 116 P.3d 305, which abandoned the requirement that juries be instructed that to return a guilty verdict the evidence must obviate all reasonable doubt. See id. at ¶¶ 25-30; see also State v. Robertson, 932 P.2d 1219 (Utah 1997), overruled in part by Reyes, 2005 UT 33, 116 P.3d 305. We decline to address this issue under the doctrine of invited error.
¶ 15 "A jury instruction may not be assigned as error, even if such instruction would otherwise constitute manifest injustice, `if counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction.'" State v. Pinder, 2005 UT 15, ¶ 62, 114 P.3d 551 (quoting State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111); see also State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742. "`This prevents a party from taking advantage of an error committed at trial when that party led the trial court into committing the error.'" Pinder, 2005 UT 15 at ¶ 62, 114 P.3d 551 (quoting Hamilton, 2003 UT 22 at ¶ 54, 70 P.3d 111).
¶ 16 Here, Wareham's counsel not only affirmatively approved of the use of the word obviate, but actually insisted that it be inserted into the instructions. Accordingly, we decline to address this issue as invited error.1
¶ 17 Wareham argues that the trial court erred when it failed to disqualify Benge as Wareham's trial counsel because Benge had previously prosecuted Wareham on a DUI offense. We determine that the trial court abused its discretion in failing to disqualify Benge to the extent that the prior conviction was utilized to enhance an offense in the present case. Accordingly, we reverse the enhancement of Wareham's DUI conviction.
¶ 18 In the criminal law context, a conflict of interest of the type asserted by Wareham is typically created when a former defense attorney subsequently prosecutes his former client. See State v. Hursey, 176 Ariz. 330, 861 P.2d 615, 617-18 (1993); see also Utah R. Prof. Conduct 1.9 ( ). The Hursey court noted that, in such circumstances, there is a substantial danger that confidential information revealed to counsel during the original attorney-client relationship could be used against the client in the subsequent prosecution. See 861 P.2d at 617. The court concluded that prior representation of a criminal defendant precludes an attorney's subsequent prosecution of the same client: "" Id. at 618 (emphasis omitted) (quoting State v. Tippecanoe County Court, 432 N.E.2d 1377, 1379 (Ind.1982)).
¶ 19 This case presents a reversal of roles from those addressed in Hursey. Here, an attorney is defending a client whom he previously prosecuted. Generally, such an arrangement is not prejudicial to criminal defendants because there is no danger of misuse of a defendant's previously imparted confidential information. To the contrary, a criminal defendant may actually receive some benefit from his counsel's prior prosecutorial experience. Accordingly, we see no inherent conflict of interest when a criminal defendant is represented by counsel who has previously prosecuted him on unrelated matters.
¶ 20 We do, however, identify a limited conflict of...
To continue reading
Request your trial-
State v. Burdick
...is represented by counsel, he generally has no authority to file pro se motions, and the court should not consider them.” State v. Wareham, 2006 UT App 327, ¶ 33, 143 P.3d 302 (citation and internal quotation marks omitted). 9.Section 77–9–3 provides, in relevant part, (1) Any peace officer......
-
L.E.S. v. C.D.M. (In re K.A.S.)
...("[T]he [criminal] defendant may not benefit from the assistance of counsel while simultaneously filing pro se motions."); State v. Wareham , 2006 UT App 327, ¶ 33, 143 P.3d 302 ("The [criminal] defendant may choose self-representation or the assistance of counsel, but is not entitled to a ......
-
State v. Finlayson
...may either file pro se motions if he or she has opted for self representation, or file motions through counsel if represented." State v. Wareham, 2006 UT App 327, ¶ 33, 143 P.3d 302 (emphasis added). Accordingly, a defendant "is not entitled to a ‘hybrid representation.’ " Id. "When a defen......
-
State v. Balfour
...or denying motions to disqualify counsel, and such decisions will only be overturned when that discretion is exceeded. See State v. Wareham, 2006 UT App 327, ¶ 10, 143 P.3d 302. "However, due to the `special interest in administering the law governing attorney ethical rules,' a trial court'......
-
TABLE OF CASES
...2-5:2 State v. Walter, No. LL1CR020109262T, 2003 WL 352628, 33 Conn. L. Rptr. 693 (Conn. Super. Ct. Jan. 17, 2003) 6-1 State v. Wareham, 143 P.3d 302, 558 Utah Adv. Rep. 21, 2006 UT App 327 (2006) 1-8:3 State v. Webb, 238 Conn. 389 (1996) 1-8:8.1, 2-1 State v. White, No. CR 1199106088, 2000......
-
CHAPTER 1 - 1-8 CONFLICTS OF INTEREST
...St. Mary L.J. 1101 (2007).[346] See State v. Barnes, 99 Conn. App. 203, 217-18, cert. denied, 281 Conn. 921 (2007).[347] State v. Wareham, 143 P.3d 302, 558 Utah Adv. Rep. 21, 2006 UT App 327 (2006) (Lawyer's prior representation of client in matter that would be used as aggravating circums......