People v. Krueger

296 P.3d 294

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Ryan J. KRUEGER, Defendant–Appellant.

No. 08CA2148.

Colorado Court of Appeals, Div. II.

May 10, 2012.

John W. Suthers, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Borquez Law Office, Robert P. Borquez, Denver, Colorado, for Defendant–Appellant.

Opinion by Judge J. JONES.

¶ 1 Defendant, Ryan J. Krueger, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder and conspiracy to commit first degree murder. We affirm. In doing so, we hold, as matters of apparent first impression in Colorado, that a criminal defendant does not have a right to review all discovery materials obtained by his counsel or a constitutional right to testify at a pretrial suppression hearing where his counsel decides not to call him as a witness.

I. Background

¶ 2 According to the prosecution's evidence, defendant learned that P.E. had been “snitching” to the police about people with whom defendant dealt drugs. He and his friends C.A. and B.G. then went to P.E.'s house and strangled her to death.

¶ 3 Five years after the murder, police arrested defendant. The People charged him with first degree murder, conspiracy to commit first degree murder, and a crime of violence.¹

¶ 4 Defendant represented himself at trial. A jury found him guilty of the lesser nonincluded offense of accessory to a crime, but could not reach verdicts on the murder and conspiracy charges. The district court declared a mistrial on those charges.

¶ 5 The People retried defendant, who again represented himself. A jury found him guilty of first degree murder and conspiracy to commit first degree murder.

II. Discussion

¶ 6 Defendant raises numerous contentions on appeal. We address and reject each contention in turn.

A. Substitute Counsel

¶ 7 Defendant contends that the district court erred by declining to appoint substitute counsel before the first trial because his waiver of his right to counsel was ineffective. His waiver was ineffective, he argues, because he had a conflict with the assigned public defenders that arose when counsel (1) refused his requests to see all of the discovery materials, and (2) refused to allow him to testify at a pretrial suppression hearing.

1. Relevant Procedural Facts

¶ 8 Before the first trial, defendant asked the court to dismiss his appointed public defenders, alleging, as relevant here, that their refusal to show him all of the discovery materials had caused a complete breakdown in communication.

¶ 9 At the first hearing on the matter, one of defendant's attorneys told the court that reviewing all of the discovery with defendant would be too time consuming. The attorney noted, however, that defense counsel had summarized the important parts of the discovery for defendant and had watched a videotape of one coconspirator's statements with him. The court asked counsel to explore whether they could allow defendant to see the documents critical to the case.

¶ 10 At a second conflict hearing, defendant again asserted a conflict based on counsel's failure to review discovery with him. The court found no conflict requiring substitution of counsel. Likewise, at a third conflict hearing, the court again found no such conflict, and told defendant that he did not have a right to review all of the discovery materials.

¶ 11 Several months later, defense counsel informed the court that defendant had asked them to withdraw from the case. Defendant repeated that he had seen very little of the discovery materials, and also asserted that counsel had said they would not allow him to testify at an upcoming suppression hearing. The court found that counsel could not bring all of the discovery materials to defendant (who was incarcerated) to review with him because the materials were too voluminous, and that it was for counsel to decide what discovery information would be provided to defendant. The court also concluded that the decision whether to allow defendant to testify at the suppression hearing was a tactical decision for his counsel to make, and therefore that decision did not create a justification for substituting counsel.

¶ 12 Defendant chose to proceed pro se, and the court advised him accordingly. The court readvised him on the first day of the first trial, at which point defendant asked the court to appoint his advisory counsel to represent him. After initially rejecting the request, the court asked advisory counsel whether he would be ready to represent defendant at trial that day, noting that there would not be a continuance. Advisory counsel responded that he would not be ready, but that he would be willing to undertake representation if the court would continue the trial. The court reiterated that it was not willing to continue the trial, and again denied defendant's request.

2. Applicable Law: Waiver of Right to Counsel and Request for Substitute Counsel

¶ 13 A defendant's waiver of the right to counsel is effective only when it is voluntary, knowing, and intelligent. People v. Arguello, 772 P.2d 87, 94 (Colo.1989); People v. Wallin, 167 P.3d 183, 190 (Colo.App.2007). A defendant's waiver is voluntary where the defendant refuses to proceed with appointed counsel without good cause. Arguello, 772 P.2d at 94;People v. Smith, 77 P.3d 751, 757 (Colo.App.2003). Thus, when the court determines that a defendant has not established good cause warranting substitution of counsel, the court can require the defendant to choose between continuing to be represented by existing counsel or proceeding pro se. Arguello, 772 P.2d at 94;Smith, 77 P.3d at 757;People v. Garcia, 64 P.3d 857, 863 (Colo.App.2002).

¶ 14 Good cause for substituting counsel exists where there is a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict that may lead to an apparently unjust verdict. People v. Kelling, 151 P.3d 650, 653 (Colo.App.2006). Substitution of counsel is not warranted, however, where the defendant lacks some well-founded reason for believing that the appointed attorney cannot or will not competently represent him. Id.;Garcia, 64 P.3d at 863. “Disagreements pertaining to matters of trial preparation, strategy, and tactics do not establish good cause for substitution of counsel.” Kelling, 151 P.3d at 653.

¶ 15 Whether a defendant effectively waived his right to counsel is a mixed question of fact and law that we review de novo. People v. Bergerud, 223 P.3d 686, 693 (Colo.2010).

3. Analysis

a. Opportunity to Review All Discovery Materials

¶ 16 Defendant contends that a conflict arose between him and his attorneys because he was unable to make intelligent decisions regarding his defense without access to all of the discovery materials. He cites no authority, however, holding that a criminal defendant who is represented by counsel has an unqualified right to review personally all discovery materials. In the few cases in which the issue has arisen, most courts have held that “[t]rial counsel's decision whether to provide his client with discovery materials constitutes a matter of trial strategy and judgment that ultimately lies within counsel's discretion.” People v. Davison, 292 Ill.App.3d 981, 227 Ill.Dec. 75, 686 N.E.2d 1231, 1236 (1997) (discussing numerous problems which could arise were a defendant entitled to review discovery materials on request); see also Short v. Davis, 2011 WL 3682767, *5–8 (D.Colo. No. 10–cv–02250–REB, Aug. 23, 2011) (unpublished order) (substitute counsel not warranted where the defendant claimed that counsel had failed to show him discovery materials because counsel said that he had advised the defendant of the discovery; the defendant's assertion established only that he and counsel disagreed about trial strategy and how to proceed with the case); People v. James, 362 Ill.App.3d 250, 298 Ill.Dec. 488, 839 N.E.2d 1135, 1141 (2005) (following Davison); but see People v. Smith, 268 Ill.App.3d 574, 206 Ill.Dec. 308, 645 N.E.2d 313, 317–18 (1994) (the defendant was entitled to a hearing on his postconviction motion alleging that counsel had not shown him certain discovery materials).

¶ 17 We agree with the majority view. As pointed out by the Illinois Court of Appeals in Davison, allowing a defendant unfettered access to discovery materials could create friction between the defendant and his attorney. The defendant could become focused on information that counsel believes to be relatively unimportant, making counsel's trial preparation more difficult. Davison, 227 Ill.Dec. 75, 686 N.E.2d at 1236. Similarly, a defendant would be more likely to question his attorney's strategic decisions, with little or no justification, thereby undermining the attorney-client relationship. Id. And convicted defendants could assert postconviction claims of ineffective assistance of counsel based on the alleged failure to share discovery materials, which could require hearings in a large number of cases because communications between defendants and their attorneys are almost always private. Id.

¶ 18 Nonetheless, defendant argues that he was entitled to review the discovery materials under Crim. P. 16(III)(c), which provides, as relevant here, “Defense counsel is not required to provide actual copies of discovery to his or her client if defense counsel reasonably believes that it would not be in the client's interest, and other methods of having the client review discovery are available.” He claims that his public defenders failed to make the materials available to him through other methods as required by the rule. The record shows, however, that counsel summarized some materials for defendant's review and showed some materials to defendant. These were appropriate “other methods” for having defendant review discovery.

¶ 19 We also observe that although defendant gained access to all the discovery materials after he chose to...