Opinion
No. 64438-6-I.
January 24, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for King County, No. 09-1-01904-1, Theresa B. Doyle, J., entered November 6, 2009.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Becker and Leach, JJ.
Anthony Delpriore appeals from the judgment entered on a jury's verdict finding him guilty of robbery in the second degree, contending that there was insufficient evidence introduced at trial to support the jury's verdict and that the trial court erred by denying his motions to have substitute counsel appointed. We affirm.
I
Early in the morning on March 25, 2009, Anthony Delpriore and Joshua Mosley were walking on a sidewalk in the Fremont neighborhood of Seattle. Delpriore was a heavyset man, while Mosley was smaller with a muscular build. Kyle Cummings was walking toward them in the opposite direction. As Cummings passed the two men, Delpriore punched Cummings in the face, causing Cummings to fall to the ground. Cummings got up from the ground and ran away from the men. Mosley followed Cummings down the street and around a corner, where Mosley tackled Cummings and held him in a chokehold. Mosley threatened Cummings' life and demanded that Cummings surrender anything in his pockets. Cummings gave Mosley his wallet, cell phone, and lighter. Mosley then left Cummings on the ground. Delpriore was not present during Mosley's second encounter with Cummings.
Nearby and shortly thereafter, police officers investigating a noise complaint observed Delpriore and Mosley together, walking up to and entering the house where the officers were. As the officers departed the house, they received information about the robbery of Cummings. After Cummings was interviewed, the officers returned to the house to contact Delpriore and Mosley. Another police officer brought Cummings to the house to determine whether Delpriore and Mosley were his attackers. Cummings made a positive identification of the men as the assailants.
Delpriore and Mosley were both charged with robbery in the second degree, in violation of RCW 9A.56.210 and RCW 9A.56.190. Mosley pleaded guilty. Delpriore proceeded to trial.
Delpriore twice orally moved for the appointment of substitute counsel. His requests were primarily based on Delpriore's belief that his right to a speedy trial was being violated by the grant of numerous trial continuances. In addition, Delpriore was unhappy that his attorney would not bring a motion to dismiss based both on the purported violations of Delpriore's right to a speedy trial and on a perceived lack of evidence to support the charges against him. Moreover, Delpriore asserted that his attorney was not devoting enough time to Delpriore's case. At one of the hearings, Delpriore stated, "I feel that he's not the right attorney for me." The trial court denied the motions, both times informing Delpriore that he had not raised a legitimate basis for discharging appointed counsel.
A month before trial, Delpriore wrote a letter addressed to the trial court requesting the appointment of a new attorney. His letter repeated many of the same, previously-raised concerns, but also indicated that his attorney had refused to provide him with copies of requested discovery. Delpriore's letter also stated that there was no communication between him and his attorney, although the letter referenced meetings and phone calls between the two. At trial, Delpriore did not indicate that he had any concerns with his attorney.
At trial, Cumming and two police officers testified. In addition, Delpriore and Mosley testified. The jury was instructed regarding robbery in the second degree, a lesser offense of assault in the fourth degree, and accomplice liability. The jury found Delpriore guilty of robbery in the second degree.
Delpriore appeals.
II
Delpriore first contends that there was insufficient evidence presented to support the jury's determination that he had committed robbery in the second degree. We disagree.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the State, any rational trier of fact could have found that the essential elements of the charged crime were proved beyond a reasonable doubt. State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d 936 (2006). On appeal, all reasonable inferences from the evidence are drawn in favor of the State and interpreted most strongly against the defendant. Hosier, 157 Wn.2d at 8. "A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). We will reverse a conviction for insufficient evidence only where no rational trier of fact could have found that all of the elements of the crime were proved beyond a reasonable doubt. State v. Smith, 155 Wn.2d 496, 501, 120 P.3d 559 (2005).
In evaluating the sufficiency of the evidence, circumstantial evidence and direct evidence are equally probative. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Credibility determinations are for the trier of fact and are not subject to appellate review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992).
To convict Delpriore of robbery in the second degree, the jury had to find that he intentionally took personal property from another's person or in his presence against his will by using immediate force, violence, or fear of injury. RCW 9A.56.190; Instruction 11 (Clerk's Papers (CP) at 50). Additionally, the jury could find Delpriore guilty as an accomplice if it found that he had solicited, commanded, encouraged, or aided or agreed to aid another in committing the robbery if he had done so "[w]ith knowledge that it will promote or facilitate the commission of the crime." RCW 9A.08.020(3)(a)(i)(ii); Instruction 9 (CP at 48). However, to find Delpriore liable as an accomplice, the jury had to find that he had not merely aided in some crime but, rather, had knowingly aided in the commission of the robbery. See State v. Brown, 147 Wn.2d 330, 338, 58 P.3d 889 (2002).
At trial, Cummings testified that as Delpriore and Mosley approached him, he heard the two men mumbling something to one another. Delpriore, a heavyset man, admitted that he punched Cummings in the face. Cummings testified that the punch knocked him to the ground. Cummings then testified that, while he was lying on the ground, both men stood over him. Cummings felt someone's hands going for something in his pockets. Delpriore was standing closer to Cummings than was Mosley. From this evidence, the jury could reasonably infer that Delpriore and Mosley had been discussing their course of action. The jury could also reasonably infer that Delpriore had attempted to search Cummings' pockets while Cummings was lying on the ground.
Once Cummings ran away, Mosley — the smaller, more muscular of the two assailants — followed Cummings. Cummings testified that Delpriore was not in sight when Mosley tackled Cummings. However, the two police officers who investigated the noise complaint both testified that Delpriore and Mosley showed up together at the house, shortly after the attack against Cummings. The house was only blocks from the initial punching incident. From this evidence, the jury could reasonably infer that Delpriore had waited to go to the house until he reunited with Mosley, after Mosley finished robbing Cummings.
Viewing the evidence and all inferences therefrom in the light most favorable to the State, a rational trier of fact could have found that Delpriore had aided Mosley in committing the robbery by punching Cummings in the face and by attempting to check Cummings' pockets. The jury was entitled to believe the State's evidence. Although Delpriore testified that he only assaulted Cummings but did not have any intent to assist in Mosley's robbery, and although Mosley testified that he had acted alone in committing the robbery, the jury was entitled to not believe their testimony. There was sufficient evidence introduced to sustain Delpriore's conviction.
III
Delpriore also contends that the trial court erred by denying his motions for substitute counsel. We disagree.
Delpriore does not contend that his rights under the state constitution, article I, section 22, should be construed more broadly than his Sixth Amendment rights.
Whether a defendant's dissatisfaction with counsel warrants the appointment of new counsel is a matter within the trial court's discretion. In re Pers. Restraint of Stenson, 142 Wn.2d 710, 732, 16 P.3d 1 (2001); State v. DeWeese, 117 Wn.2d 369, 376, 816 P.2d 1 (1991).
"[T]he essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d. 140 (1988). A defendant "`does not have an absolute, Sixth Amendment right to choose any particular advocate.'" State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004) (quoting State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997)).
To justify the appointment of new counsel, a defendant "`must show good cause to warrant substitution of counsel, such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.'" Varga, 151 Wn.2d at 200 (quoting Stenson, 132 Wn.2d at 734); see also State v. Schaller, 143 Wn. App. 258, 267-68, 177 P.3d 1139 (2007). A mere showing that a defendant has lost trust or confidence in his counsel is an insufficient reason to justify appointing new counsel. Varga, 151 Wn.2d at 200.
Where an initial showing of good cause is made, we will engage in a three-part inquiry to determine whether a motion for the appointment of substitute counsel was properly denied. We will examine (1) the extent of the conflict, (2) the adequacy of the inquiry, and (3) the timeliness of the motion.
In re Stenson, 142 Wn.2d at 723-24 (citing United States v. Moore, 159 F.3d 1154, 1158 n. 3 (9th Cir. 1998)).
Here, Delpriore failed to show anything approximating a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication. The concerns that Delpriore aired with respect to his attorney's performance related primarily to Delpriore's right to a speedy trial, which was never violated. Delpriore was also concerned about the small number of times that his attorney had contacted him. The record demonstrates that Delpriore and his attorney continued to communicate, although apparently less often than Delpriore wished. These concerns indicate only that Delpriore lost confidence in his counsel, which is not a sufficient reason to justify appointing new counsel. See Varga, 151 Wn.2d at 200. In addition, Delpriore's letter to the trial court claimed that his attorney had denied him full access to discovery materials. However, this indicates no more than that his attorney was complying with the criminal rules. CrR 4.7(h)(3) ("Any materials furnished to an attorney pursuant to these rules shall remain in the exclusive custody of the attorney and be used only for the purposes of conducting the party's side of the case, unless otherwise agreed by the parties or ordered by the court."). Delpriore did not show "`good cause to warrant substitution of counsel'" in any of his complaints about his attorney. Varga, 151 Wn.2d at 200 (quoting Stenson, 132 Wn.2d at 733).
In a case such as this, where there is no cause shown that could ever warrant the substitution of counsel, it was unnecessary for the trial court to engage in a futile inquiry in order for us to conduct a rote application of an otherwise pointless test. See Varga, 151 Wn.2d at 200-01. The record does not establish that Delpriore's continued representation by his attorney even remotely infringed upon his Sixth Amendment rights. The trial court properly denied Delpriore's motions.
In any event, at each of the oral hearings on the motions, the trial court provided Delpriore an opportunity to fully explain his concerns regarding his attorney, and the trial court explained to Delpriore why Delpriore's concerns did not warrant the appointment of new counsel. The trial court's inquiry here would satisfy our test. See In re Stenson, 142 Wn.2d at 731 ("Because it does not appear that the extent of the conflict was very great or the breakdown in communication very severe, we do not discuss in any great detail the remaining factors in the . . . test for an irreconcilable conflict.").
Affirmed.