Opinion
No. 1 CA-CR 16-0488
08-31-2017
STATE OF ARIZONA, Appellee, v. STEVE DALE BLACK, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Eric Knobloch Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Kevin D. Heade Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2015-128071-001
The Honorable Christopher A. Coury, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Eric Knobloch
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Kevin D. Heade
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in which Judge Maria Elena Cruz and Judge Patricia A. Orozco joined. JONES, Judge:
The Honorable Patricia A. Orozco, Retired Judge of the Court of Appeals, Division One, has been authorized to sit in this matter pursuant to Article 6, Section 3, of the Arizona Constitution.
¶1 Steve Black appeals his conviction and sentence for possession of dangerous drugs. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
"We view the facts in the light most favorable to sustaining the conviction[] with all reasonable inferences resolved against the defendant." State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).
¶2 In June 2015, a detective with the Glendale police department executed a traffic stop on a Ford pickup truck and, following a search incident to arrest, discovered a small baggie containing some type of "crystalline substance" in a gym bag. The driver and sole occupant, later identified as Black, told the officer the baggie contained just a "smidgen" of methamphetamine for his personal use. Subsequent testing confirmed the baggie contained eighteen milligrams of methamphetamine.
¶3 At trial, the owner of the Ford pickup truck testified he had loaned the truck to a neighbor the day before Black borrowed it. And, he did not see Black put anything in the truck before he drove it away.
¶4 The jury convicted Black of possession of dangerous drugs. Black stipulated to having five historical felony offenses, and the trial court sentenced him as a non-dangerous, repetitive offender to a slightly mitigated term of 9.5 years' imprisonment. Black timely appealed, and this Court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 13-4031, and -4033(A).
Absent material changes from the relevant date, we cite a statute's current version. --------
DISCUSSION
I. Competency Evaluation
¶5 Black first argues the trial court abused its discretion in denying his request for a competency evaluation the first day of trial. We disagree.
¶6 Generally, "[a] person shall not be tried, convicted, sentenced or punished for a public offense . . . while, as a result of a mental illness, defect, or disability, the person is unable to understand the proceedings against him or her or to assist in his or her own defense." Ariz. R. Crim. P. 11.1; see also Pate v. Robinson, 383 U.S. 375, 378 (1966) (holding that failure to observe procedures adequate to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial). Although Black's counsel expressed concerns over "competency issues" at trial, no written request was made in accordance with Arizona Rule of Criminal Procedure 11.2(a). Thus, we consider whether the court erred in failing to order an evaluation sua sponte. See Ariz. R. Crim. P. 11.2(a) (permitting the court to order "on its own motion . . . an examination to determine whether a defendant is competent to stand trial"). We review the denial of a request for a competency evaluation for an abuse of discretion. See State v. Salazar, 128 Ariz. 461, 462 (1981) (citations omitted).
¶7 A request for a competency evaluation must be granted "[i]f the court determines that reasonable grounds for an examination exist." Ariz. R. Crim. P. 11.3(a). "Reasonable grounds exist if there is sufficient evidence to indicate that the defendant is not able to understand the nature of the proceedings against him and to assist in his defense." Salazar, 128 Ariz. at 462 (citing State v. Steelman, 120 Ariz. 301, 315 (1978), and State v. Messier, 114 Ariz. 522, 526 (1977)). However, "evidence of [substance] use alone is insufficient to establish as a matter of law that the defendant lacks . . . competency to stand trial." Id. (collecting cases).
¶8 The record reflects that, on the first day of trial, lead defense counsel advised the trial court she was concerned over "competency issues," because Black "c[ould]n't vocalize concerns or statements" and "d[id]n't appear to understand the proceedings," but ultimately indicated she believed Black to be intoxicated. Co-counsel added concern that Black did not understand the proceedings because he "was extremely paranoid in how his case is going," but co-counsel did not believe Black exhibited signs of intoxication. That same day, but before ruling on any request for a competency evaluation, the court had an opportunity to observe Black argue a motion for new counsel, discussed in more detail in Part II, infra. During the argument, Black was able to articulate concerns regarding his representation generally and counsels' purported conflict of interest, and, afterward, the court specifically disagreed with counsels' observations of Black, finding instead "that defendant is not paranoid. I find that the defendant is tracking. He is not exhibiting signs or symptoms of impairment at this time."
¶9 The trial court was entitled to rely on its own observations in determining there were no reasonable grounds to investigate Black's competency. See State v. Bishop, 162 Ariz. 103, 106 (1989) ("We must give weight to the experience of an able trial judge when he perceives rationality in a defendant able to make a choice in his own best interest.") (citing State v. Sims, 118 Ariz. 210, 215 (1978)). Furthermore, the court's findings are supported by the record; Black's allegations that his attorneys threatened witnesses with prosecution and were not putting forth their best efforts to exonerate him at trial did not evidence any inability to follow proceedings or to assist his attorneys, but rather indicated Black was simply frustrated with the course of his criminal case.
¶10 Nor did Black's disruptive conduct during trial provide a reasonable basis to question his competency. See State v. Delahanty, 226 Ariz. 502, 505, ¶ 11 (2011) (accepting a competency evaluator's conclusion that "[v]olatility . . . should not be equated with mental incompetence to stand trial") (citing Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000)); cf. State v. Amaya-Ruiz, 166 Ariz. 152, 163 (1990) ("Standing alone, conduct intended to disrupt the judicial process is insufficient to require an additional [competency] examination after an initial determination of competency.") (citing State v. Taylor, 160 Ariz. 415, 418 (1989)). Indeed, Black's continued claim that he was being thwarted from presenting witnesses throughout trial evidenced that he understood the proceedings. Additionally, Black admitted his disruptive conduct was prompted by frustration over his counsel's strategy and stress over feeling "like [he's] being done wrong."
¶11 Black has not established any error in the trial court's failure to sua sponte order a competency evaluation at the start of trial, and we find no abuse of discretion.
II. Motion for New Counsel
¶12 Black also argues the trial court abused its discretion when it denied his request for new counsel the first day of trial on the grounds that his attorneys were threatening witnesses he had sought to testify on his behalf.
¶13 The Sixth Amendment guarantees a criminal defendant the right to be represented by competent counsel. U.S. Const. amend. VI; Ariz. Const. art. 2, § 24; A.R.S. § 13-114(2); Ariz. R. Crim. P. 6.1(a); State v. Moody, 192 Ariz. 505, 507, ¶ 11 (1998). "A defendant is not, however, entitled to counsel of choice, or to a meaningful relationship with his or her attorney." Moody, 192 Ariz. at 507, ¶ 11 (citing State v. Bible, 175 Ariz. 549, 591 (1993)). New counsel is required only if the defendant can prove "an irreconcilable conflict or a completely fractured relationship between counsel and the accused." State v. Cromwell, 211 Ariz. 181, 186, ¶ 29 (2005). To satisfy this burden, "the defendant must present evidence of a 'severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible'" and "go[es] beyond personality conflicts or disagreements with counsel over trial strategy." State v. Hernandez, 232 Ariz. 313, 318, ¶ 15 (2013) (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002), and Cromwell, 211 Ariz. at 187, ¶ 30).
¶14 In determining whether to grant a defendant's request for new counsel, the trial court considers factors "designed specifically to balance the rights and interests of the defendant against the public interest in judicial economy, efficiency and fairness," including:
[w]hether an irreconcilable conflict exists between counsel and the accused, and whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of the defendant to change counsel; and [the] quality of counsel.Cromwell, 211 Ariz. at 187, ¶ 31 (2005) (citing Moody, 192 Ariz. at 507, ¶ 11, and then quoting State v. LaGrand, 152 Ariz. 483, 486-87 (1987)). We review the denial of a request for new counsel for an abuse of discretion, deferring to "the discretion of the trial judge who has seen and heard the parties to the dispute." Id. at 186, 188, ¶¶ 27, 37 (citing State v. Lee, 142 Ariz. 210, 220 (1984)).
¶15 The record reflects Black first moved to dismiss his attorney the day before a scheduled March 2016 trial date on the grounds she had advised him to plead guilty and failed to interview all the witnesses. In response, defense counsel advised she had made several efforts to contact the witnesses and would make further efforts to do so if a continuance was granted. The trial court denied Black's motion, reasoning another attorney might give Black the same advice and that his current counsel was experienced and would represent Black well at trial. The court nonetheless continued the trial to accommodate the schedule of a witness.
¶16 One day before the May 2016 trial date, Black again moved to dismiss his attorney on the grounds of a "conflict of interest and ineffective couns[e]l." Black explained he felt he was being treated as though he was "guilty until proven innocent," and was being "rushed through these proceedings before [he] ha[d] the proper time to prepare." The trial court again denied the motion, concluding "[counsel] is going to do a great job for you, Mr. Black."
¶17 On the first day of the June 2016 trial, Black orally renewed his motion for new counsel, reiterating his previous arguments and adding a claim that "two of my witnesses that are crucial to my case have been threatened and scared away from my lawyer." Specifically, Black advised:
[The first witness r]ecanted . . . to the point where he wouldn't want to be used as a witness. . . . And the other one was just scared and said he wouldn't be a witness thinking that he's going to get charged per — per seeing something and not turning them into the police, as my lawyer told me they should have done, or they are going to be charged with something by the State, and he's willing to testify to that.Defense counsel denied telling any potential witness he would be subject to prosecution if he testified. The trial court again denied the motion, finding "no basis to change counsel . . . . A disagreement in strategy . . . or disagreement on the result does not constitute an irreconcilable conflict." The court further advised Black, "you're not entitled to a meaningful relationship with your attorney. I've looked at everything your lawyers have done, including the current pending motion, and it's clear that they are doing not only an effective job but a very good job."
¶18 On appeal, Black contends the intimidation of his witnesses resulted in an "irreconcilable conflict" requiring appointment of new counsel. We again disagree.
¶19 The trial court, through its denial of Black's motions, implicitly found defense counsels' denial that they had threatened witnesses more credible than Black's statements, and we defer to that assessment. See Cromwell, 211 Ariz. at 188, ¶ 37. Moreover, even if Black truly believed the attorney-client relationship was compromised, a one-sided belief is not sufficient to compel the court to grant the request for a new attorney. See id. at 186-87, ¶ 29 ("A single allegation of lost confidence in counsel does not require the appointment of new counsel, and disagreements over defense strategies does not constitute irreconcilable conflict.") (citing State v. Henry, 189 Ariz. 542, 546-47 (1997), and Bible, 175 Ariz. at 591); State v. Paris-Sheldon, 214 Ariz. 500, 505-06, ¶ 14 (App. 2007) ("We . . . do not agree a loss of trust, without more, requires a trial court to appoint new counsel. No doubt many criminal defendants mistrust their attorneys. And, even if [the defendant] and her attorney had miscommunicated about the strength of her defense, that is not a complete breakdown in communication sufficient to deprive her of her right to counsel.") (citing Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir. 1985), and then Lott, 310 F.3d at 1249). Finally, the factors the court must consider in determining whether new counsel is warranted also favor denial of the motion: Black had a history of requesting new counsel; on this occasion he sought new counsel the first day of trial, a year after the offense occurred; his present counsel were "doing not only an effective job but a very good job"; and new counsel would likely be presented with the same conflict. See supra ¶ 14.
¶20 Black did not prove circumstances requiring the appointment of new counsel, and we find no abuse of discretion.
CONCLUSION
¶21 For the foregoing reasons, Black's conviction and sentence are affirmed.