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State of Idaho v. Robert Scott Lippert

April 18, 2012

STATE OF IDAHO, PLAINTIFF-RESPONDENT,
v.
ROBERT SCOTT LIPPERT, DEFENDANT-APPELLANT.



Appeal from the District Court of the Second Judicial District, State of Idaho, Clearwater County. Hon. Carl B. Kerrick, District Judge.

The opinion of the court was delivered by: Melanson, Judge

2012 Opinion No. 21

Stephen W. Kenyon, Clerk

Order on remand denying appointment of substitute counsel and judgment of conviction for sexual abuse of a child under sixteen years, affirmed.

Robert Scott Lippert appeals from an order on remand denying the appointment of substitute counsel and his judgment of conviction for sexual abuse of a child under the age of sixteen years. For the reasons set forth below, we affirm.

I. FACTS AND PROCEDURE

In July 2005, Lippert's daughter, K.Y., reported to police that Lippert had sexually abused her when she was fifteen years old in March 1998. K.Y. stated that the incident occurred after Lippert had required her and one of her sisters, B.W., to model recently-purchased undergarments and swimsuits for him. K.Y. further alleged that, after she modeled the clothing, her mother and Lippert required that she allow Lippert to give her a massage because she had complained of having a headache. K.Y. told police that Lippert next had her kneel in front of him, and he placed her head, face-down, in his lap. Lippert then allegedly rubbed her scalp, shoulders, arms, and back for fifteen or twenty minutes, and she could feel that his penis became erect while her face was in his lap. Based on K.Y.'s report of this incident, the state charged Lippert with sexual abuse of a child under the age of sixteen years. I.C. § 18-1506.

Lippert requested and was provided with a public defender. At a pre-trial hearing, the district court rejected a request from Lippert to replace his public defender with another courtappointed attorney. The public defender ultimately represented Lippert at trial despite Lippert's subsequent indication, made on the day of trial just prior to jury selection, that he did not want the appointed public defender to represent him.

A jury found Lippert guilty as charged. The district court sentenced Lippert to a unified term of fifteen years, with a minimum period of confinement of six years. Lippert appealed, asserting that the district court erred by admitting prior bad acts evidence at his trial and by conducting an inadequate inquiry into his complaints about his court-appointed counsel. In State v. Lippert, 145 Idaho 586, 589, 181 P.3d 512, 515 (Ct. App. 2007), this Court affirmed the district court's evidentiary rulings, but held that the district court did not conduct an adequate inquiry into Lippert's complaints about his court-appointed counsel on the morning of the first day of his trial. Therefore, we remanded for further proceedings to provide Lippert a full and fair opportunity to present facts and reasons in support of his motion for substitute counsel. On remand, the district court held a hearing and considered briefing and argument on the issue. Lippert and his trial counsel testified. Thereafter, the district court determined that Lippert had not established good cause to support his motion for substitute counsel and entered an order denying Lippert's motion. Lippert appeals.

II. ANALYSIS

Lippert argues that the district court abused its discretion by denying his motion for substitute counsel. Specifically, Lippert asserts that a complete, irrevocable breakdown of communication occurred between Lippert and his trial counsel and, therefore, the district court abused its discretion by concluding that good cause did not exist to justify the appointment of substitute counsel.

The Sixth Amendment to the United States Constitution and Article I, Section 13 of the Idaho Constitution guarantee the right to counsel. The right to counsel does not necessarily mean a right to the attorney of one's choice. State v. Clark, 115 Idaho 1056, 1058, 772 P.2d 263, 265 (Ct. App. 1989). Mere lack of confidence in otherwise competent counsel is not necessarily grounds for substitute counsel in the absence of extraordinary circumstances. State v. McCabe, 101 Idaho 727, 729, 620 P.2d 300, 302 (1980); State v. Peck, 130 Idaho 711, 713, 946 P.2d 1351, 1353 (Ct. App. 1997). However, for good cause a trial court may, in its discretion, appoint a substitute attorney for an indigent defendant. I.C. § 19-856; State v. Clayton, 100 Idaho 896, 897, 606 P.2d 1000, 1001 (1980); Peck, 130 Idaho at 713, 946 P.2d at 1353. The trial court must afford the defendant a full and fair opportunity to present the facts and reasons in support of a motion for substitution of counsel after having been made aware of the problems involved. Clayton, 100 Idaho at 898, 606 P.2d at 1002.

The trial court must conduct a meaningful inquiry to determine whether a defendant possesses good cause for his or her request for substitute counsel. Lippert, 145 Idaho at 596, 181 P.3d at 522. Specifically, the district court must make some reasonable, nonsuggestive 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. Id. Even when the trial court 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.

Good cause includes an actual conflict of interest; a complete, irrevocable breakdown of communication; or an irreconcilable conflict which leads to an apparently unjust verdict. Id. Factors to be used in examining constitutional implications of a total breakdown in communication ...


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