Opinion
No. 60695-6-I.
October 6, 2008.
Appeal from a judgment of the Superior Court for King County, No. 06-1-10729-9, Gregory P. Canova, J., entered September 14, 2007.
UNPUBLISHED OPINION
Hau Minh Tran appeals his convictions for second degree assault, drive-by shooting, and first degree unlawful possession of a firearm. He contends that the trial court erred by denying his motion for substitute counsel when he and his attorney had a breakdown in communication. Because Tran fails to establish that an irreconcilable conflict deprived him of adequate representation, we affirm.
FACTS
In November 2006, Tran went to an abandoned house in south Seattle where drugs were sold and used. At some point, there was a fight between Tran and another man at the house named Hieu Ho. Ho was shot once in the leg, and witnesses who were in the house identified Tran as the shooter. Tran fled and one of the witnesses called 911. Police found a single 9 mm. shell casing in the room of the shooting. Ho was transported to Harborview Medical Center and later identified Tran as the shooter.
Later on that morning, Tran was driving in south Seattle and had a verbal exchange with two other men on the street. According to two witnesses, during the argument Tran took out a handgun and fired three to six shots at the men and fled in his car. The witnesses also told police that Tran and the two men were talking about drugs. Police recovered a single 9 mm. shell casing and an expended 9 mm. round in the area of the shooting. Ballistics tests showed that the shell casings recovered from both crime scenes came from the same gun.
The next day, Tran was driving in south Seattle when he encountered two brothers, Moses and Michael Ramos. According to the brothers, they were driving in the area when Tran's car swerved and forced them off the road. The brothers followed Tran, who pulled over shortly after. When the brothers stopped and got out of their car, Tran removed a large knife from his trunk and came toward them. The brothers then returned to their car and drove away. Tran followed them in his car, passed their car and then braked suddenly in front of them, causing a collision.
The State charged Tran with one count of second degree assault with a firearm allegation for shooting Ho (count I); one count of drive-by shooting for the shooting on the street (count II); one count of first degree unlawful possession of a firearm (count III); and two counts of second degree assault with a deadly weapon allegation for the incident involving the Ramos brothers (counts IV and V).
Tran was arraigned on December 19, 2006, and appointed counsel entered a notice of appearance on December 27, 2006. Over the next six months, the case was continued a number of times. Trial was eventually set for June 25, 2007.
On June 11, Tran brought a motion to substitute counsel. The court asked Tran about the basis for his motion and he told the court that he felt like counsel had not represented him fully, stating:
Well, I feel like he haven't represent me to the full of his knowledge. I mean, the things that he told me that he's gonna do will end up — at the last point, he don't get it done. And I feel like I'm being represented in the wrong way. And it's just, I'm just full blank right now.
When the court pressed Tran for more specifics, he responded:
Like, like those, those, those tests that he said he was gonna receive. And I mean — and, and, and the drive-by shooting, there's no witness, no nothing. He told me the last — .
He also told the court:
I mean, there's nothing to it. What the State said and there's witness and end up now there's no witness. And I mean, I want to go to trial. I want, I want, I want a fair trial for myself. I'm not being loud or nothing, but I'm just frustrated right now because I want to go to trial. And I mean, continuing, all this continuance for six and a half months. I mean, I mean, I want to go to trial. I want a fair trial and I want somebody to represent me in the right way. And I'm feeling, I'm feeling like he's not representing me to the very last thing. I want to go to trial.
After Tran finished speaking, the court asked counsel to address the court. Counsel said that "[o]bviously" Tran had no faith in him and that they were only communicating through third parties. Counsel further noted that Tran was "looking at a significant amount of time." The court then asked about the tests Tran had mentioned, and the State explained that there was a question about whether Ho's blood had been submitted for a toxicology screen while he was at the hospital. The State told the court that it did not appear that any such screening was done, and this was later confirmed.
The State also told the court that ballistics testing showed that the same gun was used in both shootings and that both attorneys had trouble contacting witnesses to the drive-by shooting.
The court denied the motion to substitute counsel. The case was then continued and ultimately went to trial on July 3, 2007. Tran did not renew his motion for substitute counsel, and the same attorney continued to represent him through trial.
At trial, Tran denied being at either location at the time of the shootings. He also testified about the incident with the Ramos brothers, claiming that the reason the brothers were forced off the road was because a car in front of him forced him to swerve. He further testified that he stopped to make sure the brothers were okay, but one of them threw a glass bottle at him and threatened to fight him. While he admitted taking out the knife from his trunk, he claimed he only did so because he felt threatened by the brothers and that he did not make any threatening motions with the knife. He further claimed that as he drove away, the brothers were following him very closely and as a result, he tapped his brakes as a defensive driving technique and they hit the back of his car.
A jury convicted Tran of the charges involving the shootings (counts I, II, and III), but acquitted him on the charges involving the Ramos brothers (counts IV and V). The jury also found that Tran was armed with a firearm at the time he assaulted Ho. The trial court imposed a standard range sentence and an additional 36 months for the firearm enhancement.
DISCUSSION
Tran argues that he had an irreconcilable conflict with his attorney that deprived him of his right to representation. We disagree.
The Sixth Amendment does not guarantee a meaningful relationship between an accused and counsel. The right to counsel focuses on "the adversarial process, not on the accused's relationship with his lawyer as such." Thus, to justify 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." Whether a defendant's dissatisfaction with his counsel is meritorious or justifies appointing new counsel is a matter within the trial court's discretion.
Morris v. Slappy, 461 U.S. 1, 13-14, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983).
In re Personal Restraint of Stenson, 142 Wn.2d 710, 725, 16 P.3d 1 (2001) (Stenson II) (citing Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988)).
State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998) ( Stenson I).
Stenson I, 132 Wn.2d at 733.
The trial court considers the following factors to determine whether substitution of counsel is warranted: (1) the reasons given for the dissatisfaction, (2) the court's own evaluation of counsel, and (3) the effect of any substitution upon the scheduled proceedings. Unsupported, general allegations of deficient representation are not enough to require substitution of counsel. Nor may a defendant rely on a general loss of confidence or trust alone to justify appointment of a substitute new counsel.
Stenson II, 142 Wn.2d at 723.
State v. Staten, 60 Wn. App. 163, 170, 802 P.2d 1384, review denied, 117 Wn.2d 1011 (1991).
State v. Varga, 151 Wn.2d 179, 200, 86 P.3d 139 (2004); State v. Schaller, 143 Wn. App. 258, 268, 177 P.3d 1139 (2007).
But "[i]f the relationship between lawyer and client completely collapses, the refusal to substitute new counsel violates the defendant's Sixth Amendment right to effective assistance of counsel." When the breakdown of a relationship between attorney and defendant from irreconcilable differences results in the complete denial of counsel, a defendant is not required to show prejudice. "An irreconcilable conflict undermines confidence in trial proceedings and is reversible error."
Stenson II, 142 Wn.2d at 722 (citing United States v. Moore, 159 F.3d 1154, 1158 (9th Cir. 1998)).
Id.
Moore, 159 F.3d at 1161.
To determine whether an irreconcilable conflict exists, we consider the following factors: (1) the extent of the conflict, (2) the adequacy of the court's inquiry into the conflict, and (3) the timeliness of the motion. The focus of the inquiry is the breakdown's effect on the representation the client actually receives. If the representation is inadequate, prejudice is presumed. If the representation is adequate, prejudice must be shown.
Stenson II, 142 Wn.2d at 724.
Id.
Id.
Schaller, 143 Wn. App. at 270 (citing State v. Cross, 156 Wn.2d 580, 132 P.3d 80, cert. denied, 127 S. Ct. 559 (2006)).
Tran contends that the lack of communication with his attorney is strong evidence of an irreconcilable conflict. We disagree. While counsel admitted there were issues between him and Tran, they did not amount to a complete breakdown in communication rising to the level of an irreconcilable conflict. Counsel told the court Tran had no faith in him, but he also indicated that they were communicating, albeit through third parties. Thus, at most, communication was strained. Notably, Tran did not tell the court that there was a breakdown in communication. Rather, he complained generally that counsel had not represented him in "the right way." These general complaints of deficient representation cannot support an order for substitution of counsel.
See Staten, 60 Wn. App. at 170.
Tran's only specific complaints about counsel's representation involved tests that counsel was supposed to receive and witnesses to the drive-by shootings. But disputes over trial strategy are not sufficient to require substitution of counsel. And here, whether Tran even had a legitimate complaint was questionable. It was later confirmed that the tests he was concerned about did not exist and that both the State and his counsel had difficulty locating witnesses to the drive-by shooting. Nor did Tran raise any further concerns with counsel's representation after the motion was denied. Indeed, the record reflects more than adequate representation throughout the trial, with counsel obtaining acquittals on two counts.
See Stenson II, 142 Wn.2d at 726-29 (holding that substitution of counsel was not warranted when the defendant and his attorney had a significant dispute over trial strategy and their relationship had become strained to the point where counsel acknowledged that he could not stand the sight of his client).