Spencer J. Hahn, Deputy State Appellate Public Defender, Boise, argued for appellant.
Jessica M. Lorello, Deputy Attorney General, Boise, argued for respondent.
This is an appeal out of Idaho County from a jury verdict of guilty to and the sentence for the crime of first degree murder of a three-year-old child. The defendant challenges the failure of the district court to appoint him substitute counsel, the jury instructions defining felony murder, and his sentence of life in prison without parole. We affirm the conviction and sentence.
Todd W. Carver (Defendant) was found guilty by a jury of murdering a three-year-old boy who was the son of Defendant's live-in girlfriend. The child suffered multiple blows to his head, causing bilateral subdural hematomas, and there was bruising on his neck consistent with strangulation. The district court sentenced Defendant to life in prison without the possibility of parole. He appeals, challenging the failure of the district court to appoint substitute counsel, the jury instructions defining the crime, and the sentence imposed.
Did the District Court Err in Failing to Appoint Substitute Counsel?
On April 4, 2011, a public defender was appointed to represent Defendant in this case. The preliminary hearing was held on April 13, 2011, and Defendant was bound over to answer to the charge in district court. The information charging murder in the first degree was filed on April 14, 2011, and on April 21, 2011, Defendant entered a plea of not guilty to that charge. The case was eventually set for a jury trial to begin on September 19, 2011.
On September 8, 2011, Defendant, through his public defender, filed a motion to dismiss counsel. The motion stated that it was made " at the express direction of the defendant for reasons the defendant will articulate on the record at the hearing of this motion." The motion was heard by the district court on September 13, 2011. On that date, defense counsel filed an ex parte affidavit in support of the motion. In that affidavit, defense counsel stated that he felt threatened by Defendant's conduct during their meeting earlier that day. He described what occurred as follows:
On September 13, 2011 at approximately 11:00 a.m. I met with the defendant in the Idaho County jail attorney visiting room. During the meeting the defendant became agitated and told me that he no longer had
anything to say and did not want to talk to me anymore about the case. I continued to make a point to the defendant, and the defendant quickly became more agitated. The defendant shouted at me and struck the side of his fist hard on the door behind him. The defendant then looked directly at me with what I took as a menacing glare. The defendant shouted for the jail staff to come get him and I also knocked on the door to summon jail staff. Jail staff took the defendant back to his cell. While the defendant was being taken back to his cell he continued to make angry comments, and when he was placed in his cell he continued to yell and to strike things.
Defense counsel concluded his request for permission to withdraw by stating, " The defendant's conduct and my fear for my safety will be a distraction to me throughout the trial and any subsequent proceedings, and I will not be able to impartially and zealously represent the defendant or advocate on his behalf."
The district court began by asking defense counsel about the motion. He answered that he had filed the motion at the request of Defendant but knew nothing further. The court then inquired of Defendant, who recited a list of grievances against his defense counsel. He stated that he had asked his counsel to get an investigator and a forensic specialist and had given him a list of witnesses to interview, but counsel had not done those things. He also did not like his counsel's suggestion that if he admitted some fault, he may be able to receive a reduced charge.
The court then questioned defense counsel. He stated that he had considered obtaining an investigator and medical expert, but did not consider either to be helpful. He had also talked to some of the witnesses Defendant had identified, but there was only one who could potentially be helpful, and he did not need to talk with the others.
The court then questioned the deputies who were present at the jail during the morning outburst by Defendant while he was meeting with his defense counsel. They both said that Defendant did not do anything other than hit the walls and that they did not hear Defendant say anything in a threatening manner.
The court then addressed Defendant again, explaining the role of defense counsel and informing Defendant he could represent himself if he desired or retain his own counsel. Defendant stated that he did not want to represent himself and did not have the money to hire an attorney. During their dialogue, Defendant stated " as far as I know told that there's nothing presented in my behalf because I don't have a defense. I thought that's what a defense attorney was for." After further dialogue, the court asked Defendant if he intended to threaten his counsel physically, and Defendant said he did not. Defense counsel stated that he did not have anything further to say, and the prosecuting attorney was given an opportunity to speak.
The hearing on the motion to dismiss counsel was heard on Tuesday, September 13, 2011, and the trial was set for Monday, September 19, 2011. Then the court asked defense counsel if he " can and would be prepared for trial on Monday", and defense counsel answered, " Yes." The court then asked Defendant if he would continue working with his counsel, and Defendant answered, " I guess I'll try to continue to work with him because apparently everything is out of my control."
" A trial court may appoint substitute counsel for an indigent defendant upon a showing of good cause. Whether substitute counsel should be provided is a decision that lies within the sound discretion of the trial court and will be reviewed on appeal for an abuse of discretion." State v. Severson, 147 Idaho 694, 702, 215 P.3d 414, 422 (2009). The Sixth Amendment to the Constitution of the United States has been construed to ensure that a defendant receives conflict-free counsel in state criminal proceedings. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220, 230 (1981). " In order to ensure that a defendant receives conflict-free counsel, a trial court has an affirmative duty to inquire into a potential conflict whenever it knows or ‘ reasonably should know that a particular conflict may exist.’ "
Severson, 147 Idaho at 703, 215 P.3d at 423. " [A] trial court's examination of the potential conflict must be thorough and searching and should be conducted on the record." Id. at 704, 215 P.3d at 424.
On appeal, Defendant contends that the district court's inquiry was deficient in two areas. First, he argues that a client threatening his or her attorney with harm creates a conflict of interest. It is the court that determines whether a conflict actually exists. Id. During his dialogue with the court, Defendant stated that he did not intend to threaten his counsel physically. After Defendant disavowed any intent to harm his counsel, the court asked defense counsel if he wanted to say anything further, and defense counsel stated that he had nothing further to add. The court viewed Defendant, his counsel, and the officers as they answered the court's questions, and the court could judge their credibility and weigh their statements. During the dialogue, there was no indication that Defendant had any intent to harm his counsel.
Second, Defendant argues " the district court did not inquire into defense counsel's ability to provide competent and diligent representation (which is different than simply being ready to participate at trial on a given date)." Although Defendant seeks to parse counsel's words, there is no indication that defense counsel was unaware of his obligation to provide competent and diligent representation to Defendant when counsel stated he could be and would be ready for trial. ...