Opinion
110,567.
07-24-2015
STATE of Kansas, Appellee, v. Stanley M. BURNS, Jr., Appellant.
Meryl Carver–Allmond, of Capital Appellate Defender, for appellant. Amber R. Norris, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Meryl Carver–Allmond, of Capital Appellate Defender, for appellant.
Amber R. Norris, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., STANDRIDGE and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
On the day jury selection was to begin in his criminal trial, Stanley M. Burns, Jr. complained to the district court that the attorney appointed to represent him had threatened him. After a brief inquiry in which Burns' counsel was not specifically asked and did not deny Burns' description of the incident, the district court denied Burns' request for a new attorney. The jury then convicted him of one count of criminal threat. Burns now appeals, arguing the district court abused its discretion in denying his request for a new attorney without adequately investigating a potential attorney/client conflict. Because we agree that the district court did not conduct an adequate inquiry, we must remand for an evidentiary hearing.
Factual and Procedural Background
Burns was arrested and charged with criminal threat following two phone calls he made to Kacey Fetters, the mother of his children. The first phone call, unrecorded, consisted of Burns making physical threats toward Fetters, after which Fetters hung up and dialed 911. Officer Kenneth Temaat arrived at Fetters' location approximately 10 minutes later and was present when Burns called the second time. Temaat instructed Fetters to place the call on speaker-phone and recorded Burns threatening Fetters with more physical violence. Burns was arrested soon after.
Burns was charged with one count of criminal threat pursuant to K .S.A.2011 Supp. 21–5415(a)(1), alleging only the facts pertaining to the second phone call. Stephany L. Hughes was originally appointed to represent Burns, but she withdrew due to a significant difference of opinion. Michael C. Brown was appointed in her place.
On the day jury selection was scheduled to begin, Brown informed the district court that Burns no longer wanted Brown to represent him. When asked, Brown opined that the issue stemmed from Burns' dissatisfaction that Brown discovered the recording of the second phone call only 10 days before trial. Brown also explained that due to technology issues and Burns' work schedule, Burns had not had an opportunity to listen to the recording. Eventually, the prosecutor retrieved her laptop and played the recording for Burns in the courtroom.
Burns' complaints with respect to Brown went beyond issues associated with the audio recording. When asked if he had a problem with Brown, Burns stated: “Yes. I have a problem with anybody that's going to walk up on me in an angry or rude manner. You know, regarding something I'm asking you. And I told him he needed to back up, you know.” When the court asked Burns why he was raising this issue on day the trial was scheduled to begin, Burns answered:
“This issue just came about. You know, I'm going be—like I said, I'm not going to be bullied. I'm not going to be threatened in an angry manner by someone who is supposed to be representing me as—he's not did anything I've asked. I'm not—just not going to do it. I'm just not going to tolerate it.”
The court asked Burns when Brown threatened him. Burns answered:
“While we was in the DA's office. When we was alone when I asked him about the tape. He walked up on me.
....
I told him he needed to back the fuck up off of me. And he said, you better fuck up. I told him he needed to give me five feet right now. And he backed up. I'm not going to tolerate that behavior from nobody. Not—at least not my attorney that's supposed to be representing. He won't walk up on me like that, no. I'm sorry, I cannot. You think I'm going to trust my live [sic] to this man? No. I'm sorry. No. No.”
Next, the court asked Brown if he was prepared to represent Burns. Brown stated that he was prepared, able, and willing. Following additional comments from Burns with respect to problems listening to the audio recording, the court asked Brown if he wanted to address the court. Brown explained that the format of the audio file likely prevented Burns from initially listening to it, and he stated that he would be willing to stand by and assist Burns if Burns wished to represent himself. Brown did not address Burns' statements concerning the alleged physical threat.
The district court eventually found that Burns' inability to listen to the audio recording before trial was based on his own refusal to cooperate and denied Burns' request for new counsel. When the district court denied Burns' request for a new attorney, Burns stated:
“I will not be represented by this man. I cannot—if I'm about to come to blows with a man, I walk out of the courtroom to keep from doing that. No. The Court—I will not be bullied like that. I will not put myself and my life on the line in a situation like that .”
The jury was selected, and the case proceeded to trial with Brown as Burns' attorney. Fetters and Temaat testified about both phone calls, and the jury heard the audio recording of the second phone call. The jury convicted Burns of criminal threat. He was sentenced to 16 months' imprisonment and 12 months' postrelease supervision.
Burns timely appeals.
Did the District Court Abuse Its Discretion in Denying Burns' Request To Appoint a New Trial Attorney?
Another panel of this court recently explained the rules and standard of review applicable to this case:
“A criminal defendant has a constitutional right to the effective assistance of counsel, but that right does not give a criminal defendant for whom counsel has been appointed the right to choose which attorney will represent him or her. [State v. Brown, 300 Kan. 565, 574,] 331 P.3d [797 (2014) ]. ‘If a defendant seeks substitute counsel, the defendant must show justifiable dissatisfaction with his or her appointed counsel, which can be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.’ 300 Kan. [565], Syl. ¶ 3.
“A criminal defendant seeking new counsel must provide an articulated statement of attorney dissatisfaction. Such a statement by the defendant triggers the district court's duty to inquire into the potential conflict of interest. [300 Kan. at 575 ], ‘A district court's duty to inquire into a potential attorney/client conflict emanates from its responsibility to assure that a defendant's constitutional right to effective assistance of counsel is honored.’ 300 Kan. [565], Syl.¶ 5.
“The district court's refusal to appoint new trial counsel is reviewed using an abuse of discretion standard. 300 Kan. [565], Syl. ¶ 6. A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).” State v. Gooch, No. 110,418, 2014 WL 5849227, at *6–7 (Kan.App.2014) (unpublished opinion).
Burns contends that the district court denied his request for a new attorney without fully inquiring as to the problems or potential conflict between him and Brown. The State counters that the district court met its investigative obligation when it fully heard Burns' complaints. Our Supreme Court's decision in State v. Bryant, 285 Kan. 970, 179 P.3d 1122 (2008), supports Burns' argument.
In Bryant, at a motions hearing and again at the subsequent sentencing hearing, the district court judge investigated Bryant's claims of poor communication with his attorney by asking open-ended questions to learn all of the defendant's concerns. Our Supreme Court noted that the district court fulfilled its investigative obligation by fully hearing Bryant's attorney's responses to Bryant's complaints and found that the district court had satisfied the requirement of inquiring into the potential conflict of interest. 285 Kan. at 991.
Here, Burns' statements concerning the threatened physical altercation involving Brown triggered the district court's obligation to inquire into the potential conflict. The district court fully heard Burns' claims of the threatened physical altercation but did not specifically ask Brown about the altercation. While the district court gave Brown the opportunity to address the court with respect to Burns' complaints, Brown only discussed issues related to the audio recording. Brown did not dispute Burns' accusation that the two had a conflict bordering on a physical altercation, allowing Burns' accusation to go uncontroverted.
The district court's failure to adequately inquire after becoming aware of a potential conflict between Burns and Brown constituted an abuse of discretion. See Brown, 300 Kan. at 578 ; State v. Vann, 280 Kan. 782, Syl. ¶ 1, 127 P.3d 307 (2006). Our Supreme Court stated that “in the absence of a suitable record on appeal concerning [an attorney's] alleged conflict of interest, [the remedy] is to remand to the trial court for a determination of whether the defendant can ‘establish that the conflict of interest adversely affected his counsel's performance.’ [Citations omitted.]” Vann, 280 Kan. at 792 ; see Brown, 300 Kan. at 578. This is the appropriate remedy here as well because the record on appeal is unsuitable to determine whether the altercation occurred.
Thus, the proper remedy in this situation is remand to the district court with directions to hold a new hearing on Burns' request for new counsel. Burns must be appointed conflict-free counsel to represent him at the new hearing. The burden will be on Burns to show justifiable dissatisfaction with Brown, “which can be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.” Brown, 300 Kan. 565, Syl. 3. If Burns is able to establish a justifiable dissatisfaction with his prior counsel, then the district court must vacate his conviction and grant a new trial.
Remanded with instructions.