Larimer County District Court No. 01CR1400. Honorable Daniel J. Kaup, Judge.
Cynthia H. Coffman, Attorney General, Katherine A. Hansen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Adam Mueller, Deputy State Public Defender, for Defendant-Appellant.
Dailey and Webb, JJ., concur.
[¶1] Defendant, Thomas Lee Johnson, appeals the judgment of conviction entered on jury verdicts finding him guilty of first degree murder, trespass, and criminal mischief. He argues that he was denied his constitutional right to self-representation, and we agree. Therefore, we reverse his conviction and remand the case for a new trial.
[¶2] A jury found defendant guilty of first degree murder, trespass, and criminal mischief; the district court sentenced him to life in prison. A division of this court reversed the judgment due to instructional error and remanded the case for a new trial. People v. Johnson, (Colo.App. No. 02CA0445, May 4, 2006) (not published pursuant to C.A.R. 35(f)).
[¶3] Defendant had been represented by the public defender in his first trial. On remand, the district court appointed alternate defense counsel (ADC) because defendant was a potential witness in another case being handled by the same public defender. However, defendant never testified in that case. Soon after being appointed, and many months before the scheduled retrial, ADC moved to withdraw.
[¶4] The court held a hearing to address the issue. ADC argued that the conflict of interest which had prompted their appointment had disappeared and that, given the complexity of the case and the public defender's involvement in the first trial, the court should reappoint the public defender. Alternatively, ADC argued that defendant should be allowed to proceed pro se, as he had repeatedly indicated " in no uncertain terms" his desire to do so. After further discussion, the
court concluded that because issues related to the conflict of interest could reemerge, it would err on the side of caution and decline to reappoint the public defender.
[¶5] The court then turned its attention to whether defendant should be allowed to represent himself. Following People v. Arguello, 772 P.2d 87, 92 (Colo. 1989), and the guidelines of the Colorado Trial Judges Benchbook, the court carefully and thoroughly questioned defendant at length. A summary of salient portions of defendant's answers follows:
o defendant understood that he already had court-appointed counsel;
o he felt that he could " do a better job" and resolve things more quickly without his counsel;
o he was not under the influence of any substances which might interfere with his ability to make decisions;
o he had been found competent to stand trial and had not been diagnosed with any mental issues (though he conceded that he had features that were consistent with being " self-narcissistic" );
o he had " no concerns" about any mental health issues that could prevent him from being able to proceed;
o he believed he might be able to work out a deal with the prosecutor to avoid going to trial;
o he had met with ADC about three times;
o he had seven-and-a-half years of experience on his case, while ADC had obtained the case file just three weeks prior to the hearing;
o he felt " that things would go a lot faster and a lot easier" if he represented himself;
o though he did not have experience with any other felony trials, he was " familiar with court procedures," and, as a " jailhouse lawyer," he had spent as much time as he could studying in the law library and helping other inmates with pro se filings and Crim. P. 35(c) motions, which he considered his area of " expertise" ;
o he realized that he faced the possibility of life in prison without parole;
o he had a twelfth-grade education but no legal training;
o he had never selected a jury in a felony case;
o to determine what questions he could ask during voir dire, he would consult the Colorado Rules of Criminal Procedure;
o he stated, " I do have the experience or the opportunity to review what was done in my first trial, so it's not like I'm actually doing this the first time around" ;
o he was not aware that jurors could be allowed to ask questions of witnesses;
o he understood that a Curtis advisement pertained to his decision about whether or ...