Opinion
No. 2 CA-CR 2019-0154
11-30-2020
THE STATE OF ARIZONA, Appellee, v. JOHN LUCIAN SHEARER II, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Michael T. O'Toole, Acting Section Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Emily Danies, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Cochise County
No. CR201700904
The Honorable Laura Cardinal, Judge
REVERSED AND REMANDED
COUNSEL Mark Brnovich, Arizona Attorney General
Michael T. O'Toole, Acting Section Chief Counsel
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Emily Danies, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Vásquez concurred and Judge Brearcliffe dissented. STARING, Presiding Judge:
¶1 "Structural errors 'deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence and no criminal punishment may be regarded as fundamentally fair.'" State v. Innes, 227 Ariz. 545, ¶ 6 (App. 2011) (quoting State v. Ring, 204 Ariz. 534, ¶ 45 (2003)). The presence of "structural error requires reversal because prejudice is presumed." See id. Here, the trial court committed structural error in denying John Shearer's motion for new counsel based on an irreconcilable conflict between himself and his attorney, and we therefore reverse Shearer's convictions and sentences for sexual conduct with a minor, using a minor to engage in illegal drug use, molestation, possession of a dangerous drug, possession of marijuana for sale, and six counts of possession of drug paraphernalia.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Shearer. See State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015). In March 2017, N.G., who was thirteen years old at the time, met Shearer, who was thirty-five, at T.C.'s apartment. After using methamphetamine with Shearer and T.C., she left with Shearer and they went to his house. After again using methamphetamine, Shearer and N.G. engaged in sexual intercourse. The following morning, N.G. left Shearer's home and returned to T.C.'s apartment.
¶3 Meanwhile, police officers were investigating a report N.G. had run away from home. Eventually, the police located N.G., and she provided details about illegal drugs in Shearer's house and his sexual activity with her. The police obtained a search warrant for Shearer's home and there discovered methamphetamine, marijuana, and drug paraphernalia.
¶4 Shearer was initially represented by court-appointed attorney David Wilkison. However, on December 22, 2017, approximately two weeks after being appointed, Wilkison moved to withdraw as counsel, citing "the existence of a significant, irreconcilable attorney/client conflict." On December 27, the trial court, without a hearing, granted his motion and appointed David Gregan as Shearer's new attorney. Three weeks later, Shearer moved to represent himself. Ultimately, because Shearer failed to sign a waiver of his right to counsel, the court denied his motion and Gregan remained counsel of record.
¶5 In February 2019, nearing trial, Gregan moved to withdraw as Shearer's counsel, asserting "the attorney client relationship between counsel and client [had] degenerated to a degree where it [was] not possible to effectively assist [his] client with his defense" and had become "antagonistic and disintegrated." Further, Gregan asserted that Shearer had filed a complaint against him with the State Bar of Arizona, and that Shearer had accused him of "conspiring with the State and Prosecutor against" him.
¶6 A week before trial, during a hearing on Gregan's motion, Gregan explained that he and Shearer had disagreements on how to proceed with certain aspects of his case. Gregan also stated: "At this point, Judge, I can't in good faith say I can effectively assist Mr. Shearer in any capacity."
¶7 Shearer, appearing telephonically, claimed Gregan was "not doing the very basic things" for his defense. Specifically, Shearer stated that, despite his requests, Gregan had failed to provide him with transcripts of the grand jury proceedings and seek a suppression hearing concerning certain evidence. Shearer went on to state that he was "being denied due process," that Gregan was "the third attorney that [the trial court had] appointed that's done absolutely nothing but railroad" him, and that Gregan had never spoken to him "for more than five minutes" about his case and was not prepared for trial. Shearer stated he had not yet filed a bar complaint against Gregan, but had one "filled out and ready to mail."
The record reflects that Shearer was represented by only one other attorney, Wilkison, before Gregan.
¶8 The trial court ruled:
I have considered the motion to withdraw, Mr. Gregan, and the proximity of trial in this case that has gone on now for some time and done a spot of research on the matter, and I find persuasive the decision by the Arizona Supreme Court in State vs. Henry . . . in which defendant sought to force counsel off of a representation through the filing of a bar complaint.Shearer responded, "I'm absolutely objecting. I'm not going to let this man, [who] I do not trust, hold my future in his hand. I will make a scene in that courtroom. You will not railroad me and stick this tyrant on my defense. There's no way."
The—this matter has lingered for a good long time, and there has been near loss of evidence in this case. We've had a very difficult time, Mr. Shearer, in communicating with you. Sometimes you appear. Sometimes you don't. Sometimes you choose to appear from DOC, and sometimes you do not. It's—it is a case that needs resolution.
In State vs. Henry, it was—the request for a motion to withdraw filed by counsel was denied, and the request for new—appointment of new counsel by defendant was denied. And that is going to be my ruling on this matter. I'm going to deny the motion to withdraw as counsel of record, Mr. Gregan.
¶9 In the same hearing, a week before trial, the court asked Gregan if he was prepared for trial. Gregan stated he was not prepared, but added: "I anticipate I will be come next week." He also informed the court that his interviews with officers connected to the case were scheduled for the next day at the earliest. When asked by the court if he anticipated having those interviews completed and transcribed in time for trial, Gregan responded, "Yes, that's my hopes."
¶10 During an exchange with Gregan, the trial court advised Shearer to cease interrupting the court and his lawyer. At that point, Shearer stated, "[h]e's not my fucking lawyer," and hung up the phone. When asked if he could bring Shearer "under control," Gregan replied: "I don't anticipate. To be honest with you, there might be a physical altercation should you put us in the same room together at trial . . . ." Gregan also told the court, "I've shown the patience of Solomon with this gentleman. I've been doing this 25 years, and I've never been faced with a situation like this."
¶11 The case proceeded to trial. After jury selection had been completed, Shearer asked to address the trial court outside of the presence of the jury. He stated that Gregan continued to disregard his directions—specifically, Gregan failed to strike the jurors as Shearer had requested—and that going to trial would be a waste of time given Gregan's "malicious intent." The court interpreted Shearer's statements as a motion for new counsel, which it denied.
¶12 Shearer was convicted as noted above and the trial court sentenced him to consecutive and concurrent prison terms totaling fifty years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The jury found Shearer not guilty of involving a minor in a drug offense as to marijuana.
Discussion
¶13 Shearer contends the trial court committed reversible error in failing to grant his motion for new counsel based on an irreconcilable conflict between himself and Gregan. Generally, we review the denial of a request for new counsel for an abuse of discretion. State v. Riley, 248 Ariz. 154, ¶ 7 (2020). But a defendant's constitutional right to competent counsel, U.S. Const. amend. VI; Ariz. Const. art. II, § 24; State v. Goudeau, 239 Ariz. 421, ¶ 77 (2016), is imperiled "when there is a complete breakdown in communication or an irreconcilable conflict between" defendant and counsel, State v. Torres, 208 Ariz. 340, ¶ 6 (2004). Thus, when such a "completely fractured" relationship exists, failure to provide new counsel constitutes structural error and, as noted, reversal is required. Riley, 248 Ariz. 154, ¶¶ 12, 17; Torres, 208 Ariz. 340, ¶ 12.
Alternatively, Shearer argues the court erred in ignoring the remaining factors listed in State v. LaGrand, 152 Ariz. 483, 486-87 (1987), which are considered when a conflict in an attorney-client relationship is deemed less than irreconcilable, State v. Cromwell, 211 Ariz. 181, ¶ 29 (2005). Further, he claims the court abused its discretion in failing to reopen evidence, resulting in a denial of his right to testify. Because we reverse Shearer's convictions and sentences on other grounds, we need not address these arguments.
¶14 A defendant has the burden of proving the existence of an irreconcilable conflict with his counsel. Riley, 248 Ariz. 154, ¶ 13. "To satisfy this burden, the defendant must present evidence of a 'severe and pervasive conflict with his attorney,'" State v. Hernandez, 232 Ariz. 313, ¶ 15 (2013) (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)), demonstrating "intense acrimony and depth of conflict," State v. Cromwell, 211 Ariz. 181, ¶ 37 (2005).
¶15 Moreover, "an indigent defendant is not 'entitled to counsel of choice, or to a meaningful relationship with his or her attorney.'" Torres, 208 Ariz. 340, ¶ 6. And, "[a] defendant must show more than 'personality conflicts or disagreements with counsel over trial strategy.'" Riley, 248 Ariz. 154, ¶ 13 (quoting Cromwell, 211 Ariz. 181, ¶ 30). A defendant's claims of insufficient trial preparation and failure to communicate are generally considered disagreements over trial strategy when unsupported by the record. Id.
¶16 For example, distrust, lack of communication, and lack of cooperation between an attorney and a defendant, as well as a bar complaint filed against the attorney by the defendant, have been found insufficient to establish an irreconcilable conflict. See State v. Champagne, 247 Ariz. 116, ¶¶ 7, 10, 11, 15 (2019) (trial court did not abuse discretion in denying motions to change counsel based partly on lack of irreconcilable conflict); see also State v. Paris-Sheldon, 214 Ariz. 500, ¶ 14 (App. 2007) (distrust and miscommunication did not require appointment of new counsel). Moreover, a court may find no irreconcilable conflict exists when the attorney contradicts the defendant's claims. See Champagne, 247 Ariz. 116, ¶¶ 10-11 (counsel asserted change not in defendant's best interests, relationship not irretrievably broken, and they could work together); see also Cromwell, 211 Ariz. 181, ¶¶ 36-37 (defendant stated counsel was competent, there was no allegation of conspiracy between counsel and prosecutors or court, "no expression of hatred or violence," and no ethical complaints).
¶17 Conversely, in State v. Moody, our supreme court held an irreconcilable conflict between counsel and the defendant required reversal. 192 Ariz. 505, ¶ 23 (1998). The court based its ruling on a record "replete with examples of a deep and irreconcilable conflict": a jail officer allegedly told Moody he might as well plead guilty given who was appointed as his counsel; counsel called Moody crazy to his face and to the press due to his claims of being abducted by space aliens; counsel disclosed 117 witnesses including U.S. Presidents and astronomer CarlSagan; Moody accused counsel of being incompetent, crazy, and of conspiring with the prosecutor and the trial court; and counsel yelled at Moody and threatened to quit his representation. Id. ¶¶ 13-16.
¶18 Additionally, counsel stated "he and [Moody] were 'almost at blows' and were 'antagonistic towards each other.'" Id. ¶ 16. When Moody was found incompetent, his counsel allegedly celebrated with a party. Id. ¶ 17. Moreover, even when Moody's competence was restored, counsel still had not interviewed witnesses, claiming his caseload did not allow him enough time to adequately prepare. Id. Finally, Moody threatened to file an ethical complaint against his counsel. Id. ¶ 18.
¶19 Here, contending the trial court committed structural error, Shearer points to his belief that Gregan was conspiring against him, a lack of communication between him and Gregan, his threat to file a bar complaint, and Gregan's alleged failure to deliver documents to him and adequately prepare for trial. Further, Shearer emphasizes Gregan's statements that he did not think he could effectively represent him and that he had not completed law enforcement interviews one week before trial, as well as Gregan's fear that a physical altercation would erupt.
¶20 The state counters that no irreconcilable conflict existed between Shearer and Gregan, arguing the lack of communication, Gregan's failure to deliver documents and file a motion to suppress, Shearer's threatened bar complaint, claims that Gregan failed to prepare, and other statements only showed that Shearer lacked a meaningful relationship with his counsel. The state also points to Gregan's statements that he would be prepared for trial and claims that he was, in fact, prepared on the first day of trial. Lastly, the state claims that Shearer had never actually assaulted Gregan and that Shearer appeared to have received the grand-jury transcripts.
¶21 We conclude there was an irreconcilable conflict in Shearer's relationship with Gregan. The issues between the two did not center on an alleged failure to prepare for trial or disagreements on trial strategy, although, given Gregan's statements one week before trial, Shearer's concerns about trial preparation were not frivolous. The relationship's problems involved more than a lack of trust and cooperation, communication issues, and a potential ethical complaint. Rather, the attorney-client relationship in this case is similar to that in Moody.
¶22 Similar to the circumstances in Moody, Shearer accused Gregan of conspiring against him with the prosecutor, and the relationship had deteriorated to the point where Gregan believed "there might be a physical altercation should you put us in the same room together at trial." Indeed, we find Gregan's choice of words noteworthy; the fact Gregan, an experienced criminal defense attorney, expressed concern that "a physical altercation" might occur, as opposed to concern that Shearer might assault him, indicates the level of mutual animosity that existed. And, in addition to telling the trial court he had never encountered anything similar in twenty-five years of practice, Gregan said, "[W]e're both at the edge with putting up with each other, I think, at this point." Further, both Moody and Shearer also threatened to file ethical complaints. In addition, similar to Moody's counsel, Gregan's equivocal statements raised concerns about his ability to timely conduct interviews and prepare for trial.
¶23 However, unlike Moody's counsel, who was primarily concerned about his caseload, Gregan considered himself unable to say "in good faith" that he could effectively represent Shearer "in any capacity" due to the degradation of their attorney-client relationship. Lastly, Shearer was only represented by one previous lawyer who moved to withdraw due to an irreconcilable conflict, very early in the case; that motion was granted five days later, without a hearing. Thus, like Moody, this is not a case where the defendant "repeatedly claimed 'irreconcilable conflict' with a series of attorneys." 192 Ariz. 505, ¶ 21 (quoting State v. Henry, 189 Ariz. 542, 547 (1997)); cf. Henry, 189 Ariz. at 547 (defendant's six motions for new counsel or self-representation supported trial court's decision to deny defendant's latest motion for new counsel).
As noted, the trial court heavily relied on Henry as support for its denial of Shearer's motion. In Henry, however, our supreme court acknowledged: "Unlike other factors, the presence of a genuine irreconcilable conflict requires the appointment of new counsel." 189 Ariz. at 547. And, not only did the record in Henry reflect the defendant's "proclivity to change counsel," id., there is no indication that Henry's attorney made statements like those made by Gregan here.
¶24 Finally, we disagree with the state that Shearer's and Gregan's actual conduct at trial establishes there was no irreconcilable conflict. See generally Torres, 208 Ariz. 340, ¶ 16 (events occurring before and after a motion for change of counsel are probative as to whether an irreconcilable conflict existed). Even if Gregan was prepared for trial, there was no physical altercation between Shearer and Gregan, and the grand-jury transcripts were delivered, the record still demonstrates an irreconcilable conflict in the attorney-client relationship, as acknowledged in Gregan's own words. And, the record, however benign, cannot fully illuminate the potential effect of an irreconcilable conflict on the conduct of Shearer's defense. For example, even assuming Gregan's actions at trial satisfied the requirements of effective assistance, there is no way to tell whether he acted or omitted to act out of a concern that there would be an escalation of the conflict. Further, even at sentencing, Shearer made clear he felt he was not adequately represented. Under these circumstances, the trial court committed structural error when it denied Shearer's motion for new counsel. See Riley, 248 Ariz. 154, ¶ 12; see also Torres, 208 Ariz. 340, ¶ 12.
Our dissenting colleague downplays Gregan's statements concerning the nature of the conflict, as well as his assessment that he could not represent Shearer effectively. The dissent also emphasizes the fact that Gregan, after being ordered to proceed, acted professionally at trial, including stating he was ready to proceed when asked in the presence of the prospective jurors, and that an altercation did not occur. Although probative, we do not find these facts dispositive, particularly given the presumption of prejudice that accompanies structural error and the fact that manifestation of the conflict in open court undoubtedly would have negatively impacted Shearer's defense. Indeed, on the first day of trial, the court told Shearer his counsel was doing his "best" for him, and his "continued respectful conduct during the trial [would] do wonders for [him], not only with the jury but with the sentencing in this matter, if it comes to that." See generally State v. Schneider, 148 Ariz. 441, 449 (App. 1985) ("[T]rial court may properly consider [a defendant's] demeanor during trial and draw conclusions about his character therefrom in determining a proper sentence to be imposed.").
Unlike Champagne and Cromwell, the record here does not contradict the existence of an irreconcilable conflict. Shearer continually raised issues with Gregan's performance, and Gregan, instead of denying these claims, agreed that he would not be able to effectively represent him.
Disposition
¶25 For the foregoing reasons, we reverse Shearer's convictions and sentences and remand this matter to the trial court for further proceedings consistent with this decision. BREARCLIFFE, Judge, dissenting:
¶26 I respectfully dissent because the trial judge did not abuse her discretion in denying Shearer new counsel and no structural error occurred. Because the record reflects that any conflict between Shearer and his counsel had been sufficiently (if not completely) reconciled before trial, Shearer was not deprived of his Sixth Amendment or state constitutional right to counsel.
¶27 It appears that Shearer and his appointed counsel, David Gregan, likely had a personality conflict and seemingly had different strategic approaches to trial, as recounted above. One week before trial, the trial judge asked Gregan directly if he was prepared for trial. Gregan candidly said, "No, Judge, not at present. I anticipate I will be come next week. We have interviews set tomorrow." The judge followed up asking: "Are you going to be ready for trial?" as to which Gregan replied: "I anticipate being ready for trial, [y]our Honor." The majority credits those responses as evidence that Gregan was hampered in his representation of Shearer. Yet the majority fails to sufficiently credit Gregan's statements on the day of trial. On the first day of trial, a week after Gregan's responses above, the court asked Gregan: "Is the defense ready to proceed?" Gregan said, "We are, [y]our Honor." Assuming, as we ought, that Gregan was being as candid with the court on the day of trial as he was the week before, see Ariz. R. Sup. Ct. 42, ER 3.3 (attorney's duty of candor to the court), the only evidence in the record is that Shearer's counsel was prepared for trial. Seemingly, given the particular nature of the conflict asserted here—hostility leading to a lack of cooperation—Gregan would not have been prepared for trial had the conflict remained unreconciled.
Although such interviews—including of law enforcement officers—might commonly or even usually have been completed far earlier in a criminal case, there is no assertion that any delay in conducting these interviews arose from the purported conflict between Gregan and Shearer.
¶28 In addition to giving more weight to Gregan's statements made over a week before trial than to those made the day of trial, the majority gives great weight to Gregan's statement that he and Shearer, if put in the same room, might come to blows. We must, as the majority appears to, assume that Gregan believed this and, again, was being candid with the court. However, Gregan's belief on this point was speculative. He did not testify that he and Shearer had had a physical altercation of any kind at any time, nor even that Shearer had threatened him with physical violence.
Although other cases finding irreconcilable conflict involved fears of physical conflict between the attorney and client that never came to be, other serious and manifested evidence of conflict were present. See Moody, 192 Ariz. 505, ¶ 16 (attorney and client "almost at blows").
¶29 It is well understood that the Sixth Amendment to the United States Constitution entitles a criminal defendant to competent representation but does not guarantee a defendant "counsel of choice," or "a meaningful relationship with his or her attorney." Moody, 192 Ariz. 505, ¶ 11. When a defendant requests the appointment of substitute counsel, a trial court must consider a number of factors, including:
Article II, § 24 of the Arizona Constitution similarly guarantees a defendant the right to counsel. See State v. Transon, 186 Ariz. 482, 485 (App. 1996) ("We have been unable to locate any authority for appellee's assertion that Arizona's right to counsel is broader than the federal right."). --------
whether 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 quality of counsel.Champagne, 247 Ariz. 116, ¶ 14 (quoting State v. LaGrand, 152 Ariz. 483, 486-87 (1987)). And, "[w]hen a trial court encounters a factual dispute in conducting [such an] inquiry, as the court did here, the court must resolve it." Paris-Sheldon, 214 Ariz. 500, ¶ 13. And we must, as the reviewing court, defer to that resolution so long as the record supports it. Id.
¶30 The standard we apply in reviewing a trial court's denial of a defendant's request for substitute counsel is abuse of discretion. See Moody, 192 Ariz. 505, ¶ 11 (clear abuse of discretion); Champagne, 247 Ariz. 116, ¶ 6 (abuse of discretion). A trial court abuses its discretion if it fails to inquire into the defendant's complaints about his counsel, or if it fails to conduct a hearing on specific factual allegations made in support of the motion for new counsel. See Torres, 208 Ariz. 340, ¶¶ 7-8.
¶31 Here, the trial court addressed Shearer's complaints on multiple occasions, heard avowals of counsel, and heard from Shearer himself. The court was more familiar than this court with the posture of the case, the prior proceedings, and the personalities of those before it. See Cromwell, 211 Ariz. 181, ¶ 37 ("[W]e defer to the discretion of the trial judge who has seen and heard the parties to the dispute."). To the extent there was a factual dispute the court needed to resolve, it was between Gregan's claims of an irreconcilable conflict between him and his client preventing him from adequately representing Shearer, and Gregan's own statements that he would be, and ultimately was, ready for trial. We must assume the court considered all circumstances before it and weighed all that it heard and saw, including Gregan's last avowal that he was ready to proceed to trial.
¶32 Additionally, we can consider what took place after the motion for new counsel was denied. See Torres, 208 Ariz. 340, ¶ 16 ("subsequent events may be relevant to prove or disprove whether an irreconcilable conflict or a total breakdown in communication occurred"). Nothing has been raised here about the events following the denial of new counsel (other than Gregan's final avowal of preparedness) that confirms the existence of an irreconcilable conflict. On the morning of trial, Shearer apologized to the court for earlier misbehavior, and, having in the past denied that Gregan was his lawyer at all, acknowledged that he was. Shearer's expressed complaints with Gregan thereafter arose only in jury selection, as to points of trial strategy over which, we recognize, a lawyer must be given independence and latitude. State v. Medina, 232 Ariz. 391, ¶ 33 (2013) ("Because voir dire involves strategic decisions by trial counsel, we decline to hold that it is within the defendant's exclusive control."). To be sure, Shearer engaged in multiple outbursts at trial directed to the prosecutor; but it seems unlikely that other counsel would have prevented such outbursts. As to conflicts in their relationship otherwise, as in Torres, it is very possible that Shearer and Gregan's airing their complaints allowed them to resolve those conflicts and move on. 208 Ariz. 340, ¶ 16. Indeed, Shearer, who at the outset had been adamant that he would testify, elected not to testify after consulting with Gregan.
¶33 The decision faced by the trial court was not clear-cut. And, had the court granted Shearer's motion for new counsel, I would similarly affirm that exercise of discretion. The cold record does not capture all of the circumstances before the court, it does not permit us to judge the credibility of those addressing the court, and we ought to be loath to reweigh statements and avowals made to the court below—especially given that the record does not clearly support the weight needed to reach the majority's conclusions.
¶34 Contrary to the majority's conclusion, this case is not Moody, and not just because Moody was a capital case. 192 Ariz. 505, ¶ 1. The Moody case is not merely one of a theoretical, irreconcilable personality conflict between counsel and client. As even the majority describes it, the Moody case is one of an attorney actively undermining his client's case. Moody's counsel called Moody "crazy" both to him privately and publicly in the press—and not because he was claiming insanity, but because his desired defense involved a tale of abduction by space aliens. Id. ¶ 13. Moody's counsel filed a witness disclosure statement identifying an absurd number of witnesses, including irrelevant government officials and astronomers. Id. ¶ 14. Moody's counsel disclosed an affirmative defense—duress—that was not available in a first-degree murder case. Id. Moody's counsel told Moody that he did not care about his case. Id. ¶ 16. And, when Moody was found to be incompetent, his counsel allegedly threw a celebratory party. Id. ¶ 17. Moody's counsel repeatedly informed the trial court that he was unprepared for trial and due to his heavy caseload would not be able to prepare. Id. ¶¶ 17-18.
¶35 Gregan did no such thing here. Gregan reported his conflicts with Shearer in the context of seeking new counsel for Shearer, he forthrightly informed the trial court of the state of his preparation before trial when asked, and he just as candidly told the court he was ready to proceed as trial began. Gregan did nothing to impair his client's representation, but instead appeared to diligently move the case forward. Additionally, Moody involved a defendant who felt constrained to represent himself when his request to change counsel was denied; here, Shearer received constitutionally protected representation by counsel. Id. ¶ 9.
¶36 As the majority acknowledges, "[a] defendant must show more than 'personality conflicts or disagreements with counsel over trial strategy.'" Riley, 248 Ariz. 154, ¶ 13 (quoting Cromwell, 211 Ariz. 181, ¶ 30). A defendant's claims of insufficient trial preparation and failure to communicate are generally considered disagreements over trial strategy when unsupported by the record. Id. Here, this is all we have: reported irreconcilable personality conflicts, reported disagreements over trial strategy, and reported lack of preparation, all unsupported by the record. Shearer claimed Gregan was not prepared for trial, but there is no evidence of that. Shearer claimed he was going to file a bar complaint against Gregan but the record does not show that he did. Shearer claimed Gregan was conspiring with the prosecutors, but the record shows nothing of the kind. Gregan predicted he and Shearer might "come to blows" if placed in the same room, but that never happened.
¶37 A truly irreconcilable conflict of the kind that purportedly existed here, would have kept Gregan from being adequately prepared for trial. Because Gregan was prepared for trial, we can surmise that any such conflict was remedied. Whether or not to grant a request for substitute counsel under these circumstances was a close case. We have no basis to say that, by denying Shearer new counsel, the trial judge abused her discretion or that error, let alone structural error, occurred. And, fundamentally, based on this record, Shearer was adequately and competently represented and received a fair trial. I respectfully dissent.