Opinion
No. 2 CA-CR 2017-0245
05-24-2018
THE STATE OF ARIZONA, Appellee, v. KEVIN NEAL, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee James Fullin, Pima County Legal Defender By Jeffrey Kautenburger, Assistant Legal Defender, 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NOT FOR PUBLICATION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 Pima County
No. CR20152102001
The Honorable Sean E. Brearcliffe, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee James Fullin, Pima County Legal Defender
By Jeffrey Kautenburger, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 After a jury trial, Kevin Neal was convicted of aggravated driving under the influence of intoxicants (DUI) and aggravated driving with an alcohol concentration (AC) of .08 or more, both while his driver's license was suspended, revoked, or restricted. The trial court imposed enhanced, concurrent eight-year prison terms. On appeal, Neal argues the court erred by denying his request for new counsel made on the first day of trial. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to affirming Neal's convictions. See State v. Welch, 236 Ariz. 308, ¶ 2 (App. 2014). Early one morning in May 2015, a Tucson Police Department officer stopped the car Neal was driving because it had only one working headlight. The officer immediately noticed that Neal had "a flushed face," "watery eyes," and "slurred speech" and that there was "an odor of intoxicants" coming from the vehicle. Neal was unable to produce a driver's license, which was later determined to be suspended. When the officer administered field-sobriety tests, Neal exhibited six of six cues for intoxication on the horizontal gaze nystagmus test, five of eight cues on the walk and turn test, and two of four cues on the one leg stand test. After obtaining a warrant, a phlebotomist drew Neal's blood, which showed a .123 AC about one and a half hours after the stop.
Since 2004, Neal's license has been suspended sixteen times and revoked ten.
¶3 A grand jury indicted Neal for aggravated DUI and aggravated driving with an AC of .08 or more, both while his license was suspended, revoked, or restricted. At a status conference in October 2015, Neal rejected a plea offer and invoked his speedy trial right. However, he failed to appear at a pretrial conference the following month. Defense counsel informed the trial court she had discussed the hearing with Neal "on the phone before it was officially set" and mailed him notice of the hearing date. The court set trial for March 2016 but later continued it to June 2016 on the state's motion. Although Neal failed to appear at both of those hearings, he later signed acknowledgements of the trial dates.
¶4 Neal subsequently filed a motion to continue the trial, which the trial court granted. However, he failed to appear at the status conference at which the trial was reset to November 2016. Neal subsequently appeared at a hearing on his motion to suppress but not at another hearing on his motion in limine. At a status conference a week before trial, Neal again failed to appear, and his counsel reported that she had "poor contact" with him. The court issued a warrant for Neal's arrest and reset the trial to March 2017. He later appeared at a hearing to quash his arrest warrant, which the court granted, admonishing him to "[a]ppear at all future hearings." However, Neal again failed to appear at both a bond forfeiture hearing and a status conference accelerating the trial date to February 2017. Neal later signed an acknowledgement of the new trial date. At his next bond forfeiture hearing, Neal initially failed to appear, but showed up later that day and was remanded to the custody of the Pima County Sheriff's Department.
The court accelerated the trial by one day because of a calendaring error.
¶5 The day before trial, Neal filed a motion to continue because he felt "unprepared for trial" given his "new status" in custody. His counsel nevertheless noted that she was "prepared for trial." At a hearing on the motion, his counsel's supervisor, who appeared on Neal's behalf, explained, "He's in custody and I think having a hard time adjusting and feeling ready to put his best foot forward in defending his case. . . . [W]hat it comes down to is his emotional and maybe the word might be spiritual preparedness for this." The court denied the motion.
¶6 The next day, before potential jurors were brought into the courtroom for the first day of trial, Neal requested new counsel, arguing he did not "feel comfortable" with his current counsel because "[s]he hasn't done nothing for me the whole time." The trial court repeatedly asked Neal, "What should she have done that you believe that she has not done?" The thrust of Neal's response was that she should have done "more work" because he did not "know what's going on." Neal also argued she should have presented more evidence as part of the motion to suppress, complained he was "offered only one plea bargain," and maintained they had not discussed trial strategy.
¶7 Neal informed the trial court that he had told his counsel's supervisor on February 8, 2017, that he "wanted a different lawyer." His counsel, who was present for part of that meeting, reported that both she and her supervisor thought Neal had decided at the end of that meeting that he "was willing to stay on . . . with [her]." Neal also indicated that he was not "getting the representation [he] wanted" as early as July 2016 but did not file a motion for new counsel at that time because he had "a lot of personal issues that [he was] dealing with." His counsel stated she kept records of all her conversations with Neal, explaining that they initially had communicated by telephone and in person but, for the past several months, they communicated primarily through e-mail because Neal had changed telephone numbers a couple of times. The court denied his motion.
¶8 Neal was convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
The trial court granted Neal's petition for post-conviction relief, seeking leave to file a delayed notice of appeal.
Discussion
¶9 Neal argues the trial court erred in denying his request for new counsel because he and his counsel had "a complete breakdown in communication and an irreconcilable conflict." We review the denial of a request for new counsel for an abuse of discretion. State v. Paris-Sheldon, 214 Ariz. 500, ¶ 8 (App. 2007).
¶10 As a preliminary matter, the state argues that "the trial court did not abuse its discretion by denying the motion to substitute counsel because the oral motion on the first day of trial was untimely." It points out that Rule 16.1(b), Ariz. R. Crim. P., provides, "Parties must make all motions no later than 20 days before trial." And pursuant to Rule 16.1(c), "The court may preclude any motion, defense, objection, or request not timely raised by motion under (b), unless the basis was not then known and could not have been known through reasonable diligence, and the party raises it promptly after the basis is known." Because Neal did not request new counsel until the first day of trial, the state reasons that the court "could have denied the motion on its untimeliness alone."
¶11 To the extent the alleged conflict between Neal and his counsel developed twenty days before trial, we agree. See State v. Carlson, 237 Ariz. 381, ¶ 7 (2015) (we will affirm trial court if legally correct for any reason). This appears to be the case here because Neal acknowledged he had been dissatisfied with his counsel as early as July 2016 and he raised the issue with his counsel's supervisor twenty days before trial. However, and although it does not appear to be the case, if the alleged conflict developed within the twenty days before trial and Neal promptly raised the issue, Rule 16.1(c) does not apply. Cf. State v. Zimmerman, 166 Ariz. 325, 328 (App. 1990) (no error in not precluding state's motion in limine as untimely where part of delay was result of defendant's late disclosure of evidence). In any event, because the trial court considered the merits of Neal's request for new counsel, we address his argument on appeal. See State v. Colvin, 231 Ariz. 269, ¶ 7 (App. 2013) (trial court has discretion to hear untimely motions).
¶12 Criminal defendants have a federal and state constitutional right to representation by counsel. U.S. Const. amend. VI; Ariz. Const. art. II, § 24; see also State v. Goudeau, 239 Ariz. 421, ¶ 77 (2016). Although this includes the right to competent counsel, a defendant is not "entitled to counsel of choice, or to a meaningful relationship with his or her attorney." State v. Moody, 192 Ariz. 505, ¶ 11 (1998). When evaluating a request for new counsel, the trial court must "balance the rights and interests of a defendant with judicial economy." Id. The court must therefore consider the following factors:
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.State v. LaGrand, 152 Ariz. 483, 486-87 (1987).
¶13 New counsel is required if the defendant can establish "a complete breakdown in communication or an irreconcilable conflict between a defendant and his appointed counsel." State v. Torres, 208 Ariz. 340, ¶ 6 (2004); see also State v. Hernandez, 232 Ariz. 313, ¶ 15 (2013). "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.'" Hernandez, 232 Ariz. 313, ¶ 15, quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002).
¶14 Neal maintains there was a "lack of communication" with his counsel, "such that [he] no longer trusted his attorney nor was he comfortable with her continuing to represent him at trial." He points out that he "repeatedly told the trial judge that his attorney had not discussed his case with him at all, particularly matters related to the trial." Neal further contends that "[t]he period immediately preceding a jury trial is often crucial in terms of attorney-client communication," but there is "nothing in the record" that shows his counsel visited him during that time.
¶15 The record, however, contains evidence of considerable contact—and presumably communication—between Neal and his counsel. Both were present at hearings or status conferences in August 2015, September 2015, October 2015, August 2016, December 2016, and February 2017—including February 9 and 13. The last two dates fell within what Neal characterizes as the "crucial" period before trial. The two discussed the filing of a motion to suppress, which counsel did. Neal also signed trial acknowledgments prepared by his counsel in November 2015, March 2016, and February 2017.
¶16 Although Neal suggests he was not "comfortable" with his counsel, the evidence must show more than a purported loss of trust or confidence. State v. Peralta, 221 Ariz. 359, ¶ 5 (App. 2009). As for their discussions of trial strategy, counsel indicated she was prepared, and Neal has not argued otherwise. Neal was not entitled to "counsel of choice" or "a meaningful relationship with his . . . attorney." Moody, 192 Ariz. 505, ¶ 11.
¶17 Although Neal's counsel did inform the trial court in November 2016 that she had "poor contact" with him, any communication issues that may have existed appear to have been exacerbated, if not caused, by Neal. He missed seven hearings and status conferences, many of which occurred in the latter half of 2016 and early 2017, leading up to his February 2017 trial. His counsel reported that Neal had "transportation problems" and changed telephone numbers a couple of times, prompting them to communicate primarily by e-mail.
¶18 Notably, at sentencing, Neal seemed to rescind his earlier concerns about his relationship with his attorney: "I don't have nothing against my lawyer. She is a great person, great woman. But I was going through a lot at that time. And I didn't mean to lash out." See Torres, 208 Ariz. 340, ¶ 16 ("[S]ubsequent events may be relevant to prove or disprove whether an irreconcilable conflict or a total breakdown in communication occurred."). Accordingly, Neal has not established a "severe and pervasive conflict with his attorney or . . . that he had such minimal contact with the attorney that meaningful communication was not possible." Hernandez, 232 Ariz. 313, ¶ 15, quoting Lott, 310 F.3d at 1249.
¶19 As to the remaining LaGrand factors, Neal contends "there [is] nothing to suggest that new counsel . . . would face the same conflict" and there is no "evidence of a proclivity [by] Neal to change lawyers." He also maintains that "inconvenience to witnesses was minimal at most" because "they were all law enforcement or other extensions of the state that regularly testify in their employment capacity." In addition, Neal recognizes the delay in making his request, but he seems to suggest that he adequately raised the issue with his counsel's supervisor beforehand.
The LaGrand factors and these arguments were not expressly raised below as part of Neal's oral request for new counsel. However, our supreme court has directed that "forcing a defendant to go to trial with counsel with whom he has a completely fractured relationship constitutes a deprivation of the right to counsel, which is structural error," requiring reversal. Torres, 208 Ariz. 340, ¶ 12. We thus consider them here. See State v. Valverde, 220 Ariz. 582, ¶ 10 (2009) (structural error requires reversal regardless of whether issue raised below or prejudice found).
¶20 While we agree the record does not show that Neal had demonstrated a proclivity to change counsel or that new counsel would have faced the same conflict, Neal's argument regarding witness inconvenience is speculative. Perhaps more importantly though, the time elapsed from the alleged offense to trial and the timing of Neal's request do not support his position. The alleged offense occurred in May 2015, but the first day of trial was not until February 28, 2017. There had been three trial continuances, and "[s]ubstitution of counsel would have caused yet more delay." LaGrand, 152 Ariz. at 487. Neal made his request for new counsel on the first day of trial, as the parties were discussing voir dire and preliminary jury instructions. Although Neal mentioned the issue to his counsel's supervisor twenty days before trial, the supervisor apparently had reason to believe Neal was willing to proceed with his current counsel. Neal also filed a motion to continue the day before trial without any mention of his desire for new counsel.
In State v. Aragon, this court reversed the defendant's convictions based on the erroneous denial of a request to substitute counsel, noting, in part, that the state did not "dispute [the defendant's] assertion that 'all of the witnesses . . . were law enforcement personnel . . . or law enforcement-related professionals, who routinely juggle their calendars to accommodate court appearances.'" 221 Ariz. 88, ¶¶ 6, 9 (App. 2009). Here, by contrast, the state maintains that "there is no support in the record" for Neal's similar assertion.
Neal points out that two of the continuances"—the state's motion to continue from February 2016 and his counsel's motion to continue in June 2016—were "essentially not directly attributable to him." But the latter was submitted on Neal's behalf, seeking additional time to file "substantive motions" before the "appropriate deadline." And regardless of who caused the delay, the overarching concern is judicial economy. See LaGrand, 152 Ariz. at 486-87.
¶21 Finally, as the state points out, the discussion at the hearing on Neal's last motion to continue in conjunction with Neal's statements when he requested new counsel suggest the problem was Neal's own mental preparedness for trial, not his relationship with counsel. See LaGrand, 152 Ariz. at 487 (record revealed only that appellant would have been happier with other counsel, not that real conflict existed). Thus, based on all the LaGrand factors, particularly the lack of an irreconcilable conflict, the evidence of contact, and the timing of Neal's request, we cannot say the trial court abused its discretion in denying the request for new counsel. See Paris-Sheldon, 214 Ariz. 500, ¶ 8; see also State v. Cromwell, 211 Ariz. 181, ¶ 37 (2005) ("[W]e defer to the discretion of the trial judge who has seen and heard the parties to the dispute.").
Because we conclude the trial court did not abuse its discretion, we do not address the state's alternate argument that "any hypothetical error was necessarily harmless because Neal received a fair trial and because the evidence of his guilt was overwhelming." --------
Disposition
¶22 For the foregoing reasons, we affirm Neal's convictions and sentences.