2013 Unpublished Opinion No. 535
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael R. McLaughlin, District Judge.
Judgment of conviction for two counts of lewd conduct with a minor under sixteen, affirmed.
Greg S. Silvey, Star, for appellant.
Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.
GUTIERREZ, Chief Judge
Richard David Pokorney appeals from his judgment of conviction for two counts of lewd conduct with a minor under sixteen. For the reasons set forth below, we affirm.
I. FACTS AND PROCEDURE
Pokorney was charged with seven counts of lewd conduct with a minor under sixteen, Idaho Code § 18-1508, stemming from allegations concerning four of his five sons. He was appointed a public defender (Counsel), but was dissatisfied with Counsel's performance. After being denied substitute counsel Pokorney discharged Counsel in the middle of trial and proceeded pro se. Pokorney was convicted of five counts of lewd conduct involving three of his sons, but the convictions were overturned by this Court on appeal due to the improper admission of prior acts evidence. State v. Pokorney, 149 Idaho 459, 235 P.3d 409 (Ct. App. 2010). On retrial, the State charged Pokorney with five counts of lewd conduct involving three of his sons (R.P., W.P. and J.G.). The district court again appointed Counsel to represent Pokorney. Pokorney repeatedly requested substitute counsel from outside the public defender's office, but the district court refused, and Pokorney again chose to proceed to trial pro se. The jury found Pokorney guilty of two counts of lewd conduct (Count II in regard to R.P. and Count V in regard to W.P.), but could not reach a verdict on the remaining charges, which were dismissed without prejudice. The district court entered a judgment of conviction, and Pokorney now appeals, contending the district court erred in denying his motion for substitute counsel and in denying his request to recall certain witnesses for further cross-examination and contending there was insufficient evidence to support his convictions.
A. Substitute Counsel
Pokorney argues the district court abused its direction by refusing to appoint him substitute counsel or, in the alternative, failing to hold a proper hearing in response to his request for substitute counsel. The Sixth Amendment to the United States Constitution and Article I, Section 13 of the Idaho Constitution guarantee the right to counsel. However, the right to counsel does not necessarily mean a right to the attorney of one's choice. State v. Lippert, 152 Idaho 884, 887, 276 P.3d 756, 759 (Ct. App. 2012); State v. Clark, 115 Idaho 1056, 1058, 772 P.2d 263, 265 (Ct. App. 1989). Nor does it entitle a defendant to a "meaningful relationship" with his or her attorney. Morris v. Slappy, 461 U.S. 1, 13-14 (1983). It does entitle a criminal defendant to reasonably competent counsel, State v. McCabe, 101 Idaho 727, 728, 620 P.2d 300, 301 (1980); State v. Carman, 114 Idaho 791, 793, 760 P.2d 1207, 1209 (Ct. App. 1988), but mere lack of confidence in otherwise competent counsel is not necessarily grounds for substitute counsel in the absence of extraordinary circumstances. McCabe, 101 Idaho at 729, 620 P.2d at 302; Lippert, 152 Idaho at 887, 276 P.3d at 759; State v. Peck, 130 Idaho 711, 713, 946 P.2d 1351, 1353 (Ct. App. 1997).
If "good cause" is shown, the defendant is constitutionally entitled to the appointment of new counsel. Lippert, 152 Idaho at 887, 276 P.3d at 759. Good cause includes an actual conflict of interest; a complete, irrevocable breakdown of communication; or an irreconcilable conflict that leads to an apparently unjust verdict. Id. Factors to be used in examining constitutional implications of a total breakdown in communication include: (1) whether the defendant's motion for new counsel was timely; (2) whether the trial court adequately inquired into the defendant's reasons for making the motion; (3) whether the defendant-attorney conflict was so great that it led to a total lack of communication precluding an adequate defense; and (4) whether the defendant substantially and unreasonably contributed to the communication breakdown. United States v. Lott, 310 F.3d 1231, 1250 (10th Cir. 2002); Lippert, 152 Idaho at 887, 276 P.3d at 759. A defendant may not manufacture good cause by abusive or uncooperative behavior. Lippert, 152 Idaho at 887, 276 P.3d at 759.
Absent a constitutional entitlement, the issue is one of discretion. I.C. § 19-856; Clark, 115 Idaho at 1058, 772 P.2d at 265. 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 cases of both the constitutional and discretionary grant of substitute counsel, 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. State v. Clayton, 100 Idaho 896, 898, 606 P.2d 1000, 1002 (1980); Lippert, 152 Idaho at 887, 276 P.3d at 759. It must conduct a meaningful inquiry to determine whether a defendant possesses good cause for his or her request for substitute counsel. Lippert, 152 Idaho at 887, 276 P.3d at 759. 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. Lippert, 152 Idaho at 887, 276 P.3d at 759. Even when the trial court suspects 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.
Pokorney's involvement with Counsel began prior to his first trial, during which time Pokorney repeatedly requested appointment of substitute counsel and the district court denied the requests. He subsequently discharged Counsel in the middle of trial and proceeded pro se. After Pokorney's judgment of conviction was overturned on his first appeal to this Court and the case was remanded, he was again appointed the same attorney. At a pre-trial hearing on August 12, 2010, Pokorney moved that substitute counsel be appointed, specifically requesting an attorney from outside the public defender's office on the basis of "ineffective counsel, obstruction, denial of evidence, willful sabotage, on and on [sic]." The district court instructed him to write a letter outlining his concerns and said that a hearing would be held on the motion.
A hearing was held on Pokorney's request for substitute counsel on August 20. The district court indicated it had not received Pokorney's letter and Pokorney stated he had it with him and was not aware he was supposed to deliver it prior to the hearing. When the district court asked to see the letter, Pokorney indicated he withdrew his motion for substitute counsel and wanted to assert his right to proceed pro se. Upon further questioning by the district court it was clarified that Pokorney continued to stand by his request for substitute counsel, and he asserted he had a conflict with Counsel. When asked, Counsel stated he did not have a conflict that would inhibit his ability to represent Pokorney and reaffirmed his past indications that he had conducted discovery, investigated the case, had the assistance of an investigator on the case, and was prepared to meet with Pokorney on a regular basis to prepare for trial.
Upon questioning by the court, Pokorney described a particular threat he believed Counsel made:
He told me that during the course of the [first] trial while in a side room, that if I continued to question . . . one of the witnesses, that you had told him that he would be reassigned to be the attorney and that my right to represent myself would be taken away, and that he would, quote, make sure that I spent the rest of my life in prison.
Counsel denied making such a statement. Pokorney also complained that, during their first meeting eight months before the first trial and before any investigation commenced, Counsel "threatened" him by asking about the proper clothing size for Pokorney to wear at trial, which Pokorney interpreted as Counsel's indication that the case was "definitely going to trial" when most cases do not. Counsel denied it was his intent to "scare" or "threaten" Pokorney, but rather to prepare for trial. Pokorney indicated he had many additional conflicts with Counsel. At that point, the district court suspended the hearing and ordered a competency evaluation based on "grave concerns" about Pokorney's competency to proceed.
The next hearing was held on September 24, during which the district court noted the psychological evaluator determined Pokorney was competent to proceed. The court then noted it had received two detailed documents from Pokorney outlining his complaints regarding Counsel, the first a letter to Counsel dated August 17, 2010, and the second a document entitled "Request for Counsel, " filed with the court on September 24, 2010. The gist of these documents was that Pokorney believed Counsel acted ineffectively in regard to his first trial, to a degree that Pokorney accused him of "colluding" with the prosecution. When asked whether he had any additional complaints regarding Counsel, Pokorney said no. Counsel denied the allegations in the letters, and the court made the following ruling:
[The Court]: Again, based upon the representations that were made to the court earlier, and that was just shortly before the court requested that there be a mental health evaluation . . . [and] based upon the letters that I have reviewed, and keeping in mind it is the province and the duty of the court to review the allegations, I cannot find at this time that [Counsel's] representation of Mr. Pokorney in the prior proceedings was deficient or was ineffective or was incompetent. In fact, to the contrary.
I will also find that [Counsel] does not have a conflict in representing Mr. Pokorney in future proceedings. It is clear from these letters that Mr. Pokorney has a conflict with [Counsel] representing him.
However, that's not the standard. The standard is, is there a conflict that would prevent counsel from representing defendant, or have there been statements or actions by defense counsel that rise to the level that a defendant cannot, based upon those specific actions or comments--cannot have a level of confidence, a level of--well, the level of confidence in the defense counsel?
By that, I mean, though I have reviewed all of these statements you've made, there is nothing in those that show to this court--
[The Court]: Just let me finish. I'm making my ruling, Mr. Pokorney. That [Counsel] either through statements made to you or actions taken by him, demonstrate any bias or prejudice against you, the crime that brings you before the court.
So the option is this: If you would like to have an attorney represent you, if it's going to be an appointed ...