[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
El Paso County District Court No. 95CR3134. Honorable Larry E. Schwartz, Judge, Honorable Donald E. Campbell, Judge, Honorable David S. Prince, Judge.
John W. Suthers, Attorney General, Majid Yazdi, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Thomas K. Carberry, Denver, Colorado, for Defendant-Appellant.
Dunn and Plank[*], JJ., concur.
On the Court's Own Motion
[¶1] Defendant, Sanford B. Schupper, appeals the judgment of conviction entered upon a jury verdict finding him guilty of theft. We affirm.
[¶2] The history of this case is a long and tortured one. Because the history provides a factual basis necessary to place this matter in context, we include it here.
[¶3] On September 7, 1995, defendant was charged with a single count of felony theft in El Paso County (95CR3134) (" theft case" ). Initially, defendant requested court-appointed counsel, but later came to an agreement to pay counsel privately.
[¶4] In April 2001, defendant had yet to be tried. On April 6, defendant's private counsel requested to withdraw from the case based on defendant's failure to pay approximately $120,000 in legal fees. Judge Schwartz, sympathetic to counsel but frustrated by the delay in the case, denied the motion. Private counsel then filed several additional motions to withdraw, and eventually was permitted to withdraw on May 25, 2001, based on a conflict of interest with defendant.
[¶5] On the same day that counsel argued his initial motion to withdraw, defendant completed Form JDF208 (" affidavit " ) alleging that he was indigent and requesting court-appointed counsel. In his affidavit, defendant listed under monthly income " no salary paid since 12/15/00." Under assets, defendant listed $610 in savings, $5500 in
checking, and $5000 in personal property with nothing convertible to cash. Defendant listed $14,400 in monthly expenses and over $500,000 in " judgments."
[¶6] Based on the affidavit, the public defender determined defendant was entitled to court-appointed counsel, and, on June 7, 2001, a public defender was appointed to represent defendant. Pursuant to statute, section 21-1-103(3), C.R.S. 2013, the district attorney received a copy of defendant's affidavit. On June 13, 2001, the prosecution filed a " motion to challenge finding of indigency," arguing defendant had misrepresented his assets in the affidavit and that defendant was not entitled to court-appointed counsel. At a hearing on the People's motion, the court determined defendant should be appointed counsel to represent him at the indigency hearing.
[¶7] On June 26, 2001, investigators executed a search warrant on defendant's residence and took photographic evidence of his assets. At a hearing two days later, the prosecution sought to introduce evidence from the search of defendant's home. The prosecution also subpoenaed private counsel's billing records to show the substantial funds defendant had paid counsel. Because private counsel objected to the subpoena on the grounds of attorney-client privilege, the court continued the hearing to allow the parties to brief the question of whether the billing records were privileged documents.
[¶8] On July 30, 2001, a grand jury indicted defendant on a charge of perjury based on his affidavit (01CR2859). Consequently, the prosecution also charged defendant with violation of his bail bond in the theft and COCCA cases (01CR2889) (together with 01CR2859, the " perjury cases" ). Defendant was arrested the next day, and the perjury cases were set before a different division than the theft and COCCA cases.
[¶9] On August 2, August 6, and August 13, 2001, the court held hearings on the appointment of alternate defense counsel for the limited purpose of representing defendant in his quest for court-appointed counsel as an indigent person.
[¶10] The court held a bond hearing on the COCCA and perjury cases on August 16, 2001. At that hearing, the court made several findings of fact concerning defendant's assets. The court found that defendant had recently sold a piano for between $10,000 and $15,000; defendant had $80,000 in personal jewelry; defendant had an $11,000 cigar collection; and defendant had an exclusive wine collection. While alternate defense counsel was present at the hearing, the court continued the indigency determination so that the alternate defense counsel could fully prepare.
[¶11] During the pendency of the indigency determination, the public defender's office was still representing defendant on the theft and COCCA cases. Trial on the theft case was scheduled to start on September 10, 2001. On that date, the trial court continued the case to provide the public defender with additional time to prepare. On the same day, the prosecution moved to add fourteen counts of check fraud related to the felony theft charge.
[¶12] The court held additional hearings on defendant's indigency affidavit on September 19, October 10, October 29, November 19, and December 13, 2001. During that time, the court appointed a collections investigator to meet with defendant to determine his assets and liabilities for purposes of the indigency determination. The collections investigator recommended defendant be denied court-appointed counsel.
[¶13] On December 19, 2001, the court held its final hearing on defendant's request for court-appointed counsel. After testimony from the collections investigator and a moving company employee hired by defendant to move items out of his home, the court concluded as follows:
So the Defendant . . . indicated at the time that he submitted his original application for court-appointed counsel that he had virtually no assets, as I understand his application, that he had no income. . . .
[A]nd he has maintained that through [alternate defense counsel] up to the present. In fact, that was underlined by the accountant, who indicated, as I recall his testimony, that there was virtually no money left in any of the accounts.
Well, the Court will find to the contrary. That, first of all, there are substantial assets in existence. They are luxury assets. They still exist, as is testified to by the person who did the moving in this case, as well as the hearsay testimony given to us by the Defendant's either maid or housekeeper, whatever you call her. So the Court will find that there are substantially in excess of $10,000 in assets. They still exist. The Defendant still has access to them. And so to the extent that it affects the final numerical determination on the calculation chart, I agree with the collection investigator assessment, that he is entitled to no points as a result of that.
The second question is whether or not he has income that is in excess of the guidelines, noting that the guidelines, taking them in the light most favorable to Defendant, would allow him to have somewhere around $1200 in monthly income -- and the evidence that's been presented today shows . . . the Court that he has had considerably more than that as recently as the last month . . . particularly for the type of expenses that are shown in the attachments which the collection investigator reviewed.
The Court will note there are approximately $5,000 of expenses -- $4,700 is more accurate -- that have been expended by the Defendant during the last month for what appear to be moving expenses. They're certainly not living expenses. They're not the type of expenses one would expect from indigent persons, and they far exceed anything the Court has reviewed in an indigency application in the past.
I assume that the Defendant's position is that he borrowed all of that money, and that is what he told the collections investigator. But based on the testimony that I have heard over the last five years, I would find that testimony or his statement to the collections investigator to be incredible, absent some additional proof. That does not necessarily place an additional burden on him, but I would note there is not a shred of evidence to support that these are loans, other than his unsupported statement that they are loans.
Of greater surprise to the Court, having previously found that McDonald Capital . . . was an asset exclusively of the Defendant and is nothing more than the Defendant in a corporate capacity, suddenly can produce $4,000 to pay for moving expenses, and, frankly, I'm stunned at that fact. So that's $9,000 in a single month. And there's nothing to -- that convinces the Court by a preponderance of the evidence that those are from loan proceeds.
. . . .
I would note as additional evidence of the fact that he maintains a luxury lifestyle, he's apparently still employing a housekeeper. It's almost impossible for me to believe that whether it's a housekeeper, maid, or friend that she's doing it for free. That he would be able to maintain those assets in his current lifestyle. And then last, he would be driving a late model Audi automobile, even though it is on lease. Somebody must be paying the lease payment. And the court, under the totality of the circumstances that I've heard testified to, even if it is paid by somebody else, it's income to the Defendant.
The Court would be remiss in its responsibilities if I were to find that the Defendant is indigent under the circumstances. Indigency funds are set aside for the purpose of supporting people truly without means to hire counsel [and who] under no circumstances can afford their own attorney. And we're all aware of how destitute most of those people are. The Defendant just is not. So the Court will find he's not entitled to Court-appointed counsel, as much as I would like as a practical matter to find to the contrary.
[¶14] After the court determined defendant was not entitled to court-appointed counsel, defendant represented himself. Defendant filed multiple motions for reconsideration and orally requested the appointment of counsel.
Defendant also filed a motion to recuse Judge Schwartz, arguing the judge was biased against him based on the court's indigency determination.
[¶15] On March 12, 2002, defendant represented himself at the jury trial on the theft case. The jury found defendant guilty of theft, but it hung on the ...