State v. Bozarth

501 P.3d 116

STATE of Utah, Appellee,

v.Eddie Ray BOZARTH, Appellant.

No. 20190397-CA

Court of Appeals of Utah.

Filed November 4, 2021

Leah Jordana Aston, Orem, Attorney for Appellant

Sean D. Reyes and Thomas Brunker, Salt Lake City, Attorneys for Appellee

Judge Diana Hagen authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.

Opinion

HAGEN, Judge:

¶1 The police responded to a report that parolee Eddie Ray Bozarth was acting erratically and might be using drugs. Bozarth's parole officer (the parole officer) directed police to search Bozarth's bedroom, where they discovered drugs and associated paraphernalia. Bozarth was charged with multiple crimes, and the district court appointed counsel (counsel) to aid his defense. Unhappy with counsel's representation, Bozarth elected to represent himself, assisted by a new attorney (standby counsel). With the help of standby counsel, Bozarth unsuccessfully sought to suppress the evidence police had seized during the search of his bedroom. Subsequently, Bozarth pled guilty to misdemeanor drug possession. Bozarth now appeals with the assistance of appellate counsel, arguing that the district court improperly denied his motion to suppress, that standby counsel was constitutionally ineffective, and that the court failed to ensure that Bozarth knowingly and intelligently waived his right to counsel. We affirm.

BACKGROUND

¶2 One evening, dispatch received a call from Bozarth's mother (mother) who claimed Bozarth "was acting strangely and crazy out in his yard." Bozarth had been residing with mother and she indicated that, due to Bozarth's behavior over the prior week, she suspected he had reverted to using drugs. Dispatch relayed the information to a police deputy (the deputy) who was familiar with Bozarth. The deputy immediately called the parole officer.

¶3 The parole officer asked the deputy and the accompanying corporal (the corporal) to check on Bozarth and "make sure [mother] was okay." In his almost eight years working as Bozarth's parole officer, the parole officer had never received a call from mother, and he found it "very concerning." Because the parole officer "ha[d] concerns that there may be drug use going on," he also asked the deputy to contact him again after assessing the situation to determine whether to search Bozarth's bedroom. The parole officer informed the deputy that Bozarth's parole agreement contained a search clause, which reads,

Pursuant to state law ..., while I am on parole I am [s]ubject to search and seizure of my person, property, place of temporary or permanent residence, vehicle, personal effects by any parole officer or by any other law enforcement officer at any time (with or without a search warrant, and with or without cause)[ ]; however a law enforcement officer who is not my parole officer must either have prior approval from a parole officer or have a warrant for a search of, or seizure from, my residence.

¶4 Upon arriving at mother's residence, the police found Bozarth in the driveway acting in a way they described as excited, aggressive, and confrontational. The police exited their vehicles and informed Bozarth they were "just there to check on him and make sure everything was okay." Bozarth proceeded to rush quickly toward the corporal, "getting in his face," and the corporal ordered Bozarth to stop. Due to Bozarth's agitated state and their knowledge of his history of fighting with officers, the police proceeded to handcuff him. The corporal suspected Bozarth was acting under the influence of drugs, so the corporal shined a flashlight in Bozarth's eyes and observed that his pupils reacted only slightly to the light, an indication that he might be "using some type of stimulant." When the corporal headed inside to check on mother, the deputy remained outside with Bozarth, as he struggled and yelled continuously.

¶5 Mother invited the corporal into her home. According to the corporal, although mother was "obviously upset," she confirmed that she was safe and unharmed. Mother then reiterated her concerns that Bozarth had relapsed and that she feared his increasingly aggressive behavior. At that point, the corporal contacted the parole officer and apprised him that Bozarth appeared to be on drugs. The parole officer asked the corporal to search Bozarth's room. Mother likewise authorized the corporal to "check anywhere and anything that [he] wanted."

¶6 When the corporal entered Bozarth's bedroom, he saw "tinfoil, a glass pipe with burnt residue in it, and a straw that had a crystalline substance inside it" sitting on top of a rolltop desk. Based on the corporal's training and experience, he surmised that the items were drug paraphernalia and that the substance inside the pipe was methamphetamine. Bozarth was booked into jail on possession of a controlled substance with priors, a third-degree felony; possession of drug paraphernalia, a class B misdemeanor; and disorderly conduct, a class C misdemeanor.

¶7 At the initial hearing, the district court informed Bozarth of his charges and the associated maximum and minimum sentences. Because Bozarth had applied for a public defender, the court appointed counsel to assist with Bozarth's defense. Bozarth, however, told the court: "[I] reserve the right to retake the helm and control my own destiny if I need to if [counsel] does not assert my will upon my defense."

¶8 At the pretrial conference, counsel indicated that Bozarth wanted the case to go in a direction that counsel believed was not in Bozarth's best interest. Counsel petitioned the court "to determine whether Mr. Bozarth needs to represent himself." The district court then explained counsel's role, and Bozarth requested legal materials so he could do his own research to "verify" the credibility of legal printouts provided by counsel. Jail personnel and counsel offered to make arrangements for Bozarth to obtain legal books, and the court set the case for a review hearing to give Bozarth and counsel time to determine how to proceed.

¶9 Two weeks later, counsel told the court,

[I]t is my understanding Mr. Bozarth would like to represent himself from now on. I have indicated to him his options. And I find Mr. Bozarth to be more educated in the law than other people. He's cognizant of what his rights are. ... It's my understanding that Mr. Bozarth would still like to represent himself.

....

... Mr. Bozarth, as you can tell, he's educated. He knows the law to some degree. He's very well versed to some degree.

The court then asked Bozarth, "Do you want [counsel] aboard or not?" To which Bozarth responded, "I do not. I want to represent myself." The court acknowledged Bozarth's position, and Bozarth continued, "I would like assistance. ... I would like assistance of counsel. Assistance. That means when I ask for law it doesn't take me three months to get the constitution." Bozarth claimed that he had limited access to legal materials, but jail personnel refuted that statement, insisting Bozarth had never asked to access the jail library that was available to him. Additionally, counsel disclosed that he had delivered two books of court rules and procedure for Bozarth's use. Bozarth asked for more materials, the rules of professional conduct, and the rules of judicial conduct, asserting, "I am entitled to all the laws, because all the laws are applied to me. I am entitled to read them, study them, have knowledge[,] be able to write proper meaningful papers to the court."

¶10 After hearing from all parties—but without conducting a specific colloquy with Bozarth designed to ascertain whether Bozarth's waiver of his right to counsel was knowing and voluntary—the court appointed standby counsel "on a limited basis to assist" Bozarth. The court also conferred with jail personnel to ensure that Bozarth had access to legal materials. Bozarth indicated that he intended to file a motion to suppress and attempted to give the court documents relating to accusations he had against jail personnel. In response, the court described how it receives information, explaining,

So you need to realize that you are representing yourself. ... [Y]ou need to file the appropriate documents. Usually, they are called a motion. And then the other party has a right to respond. Then you have a right to reply.

....

... And then there's going to be a notice to submit filed to the court. And then that will let the court know what [action] the court needs to take.

Bozarth expressed frustration that he could not give documents directly to the court and requested additional direction but was told, "[The court] can't instruct you now that you are going to be representing yourself."

¶11 Bozarth next attended court for a status hearing a few months later. Standby counsel shared concerns that Bozarth misunderstood the role of standby counsel because Bozarth was asking standby counsel to file civil claims against the county. The court clarified to standby counsel, "Bozarth's going to be representing himself, but you are there to advise him" on the criminal charges stemming from the search of his bedroom. Turning to Bozarth, the court explained, "[Y]ou are representing yourself, but you have [standby counsel] on your side." And it followed up by asking,

[W]hat role do you want [standby counsel] to play in your criminal case? ... [A]re you wanting [standby counsel] to be ... the one that is going to be presenting opening, closing, asking questions at trial, and you are going to be quiet, or are you going to be the one that is, that's taking the lead?

Bozarth declared, "I'll proceed with my own. Because I am going to ask the questions .... As I told you, you assigned him to be my assistant, my assistant." The court reiterated that standby counsel was available should Bozarth need assistance, but Bozarth was in charge of his representation. To this, Bozarth said, "Correct. And that's what I had the impression of also." The court proceeded to remind Bozarth that standby counsel was...