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People v. Faussett

Court of Appeals of Colorado, First Division

June 16, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Wesley Faussett, Defendant-Appellant.

         Adams County District Court No. 13CR3552 Honorable Thomas R. Ensor, Judge

          Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Leslie A. Goldstein, Alternate Defense Counsel, Steamboat Springs, Colorado, for Defendant-Appellant

          DAILEY JUDGE

         ¶ 1 Defendant, Wesley Faussett, appeals the judgment of conviction entered on a jury verdict finding him guilty of aggravated motor vehicle theft in the first degree. We affirm.

         I. Background

         ¶ 2 Defendant's conviction arose out of a theft of a Honda PCX150 scooter from a residential parking lot.

         ¶ 3 Four days after the scooter was reported missing, police located a stolen pickup truck parked outside an apartment complex. With the use of GPS surveillance technology, they were able to follow the pickup and the individual operating it (the driver) as he drove the pickup to various places, including a storage unit, and ultimately arrested him.

         ¶ 4 Later, police discovered that the driver was "possibly involved" with the disappearance of other vehicles besides the pickup. While in custody, the driver made several phone calls to defendant and the driver's girlfriend (the girlfriend). During these calls - which were monitored by the police - the driver talked to both defendant and the girlfriend about disposing of or selling the "bike" or "scooter."

         ¶ 5 Defendant was arrested for his involvement in the scooter's theft. At trial, the prosecution presented the following evidence:

• On the day the scooter was stolen, the girlfriend rented a storage unit at the facility to which police had followed the driver in the pickup.
• The day after the scooter was stolen, the driver sent a text message to defendant saying, "[y]a, its [sic] a Honda PCX 150."
• Inside the girlfriend's storage unit, police found the stolen scooter's license plate.
• Photographs captured from video surveillance footage obtained from the storage facility showed "three parties, what looks like moving a scooter, a motorcycle, into the back of a pickup" within weeks of the driver's arrest.
• The storage facility's manager testified that, the day after the video surveillance footage recorded three parties moving a "scooter" or "motorcycle" from the unit, defendant told her he broke the lock on the storage unit.
• The girlfriend testified that defendant told her that "he went to remove the bike" from the storage unit, to which only he and the driver had a key, and damaged the unit's lock in the process.

         ¶ 6 Defendant presented no witnesses or evidence on his behalf; he asserted, however, that the prosecution's case against him was merely "[s]peculation, conjecture, [and] surmise."

         ¶ 7 The jury found defendant guilty as charged, and the trial court sentenced him to six years in the custody of the Department of Corrections and three years' parole.

         II. Denial of Continuance

         ¶ 8 Defendant first contends that the trial court erred in denying his motion for a continuance. We disagree.

         ¶ 9 A week before trial, defense counsel moved for a continuance, as pertinent here, on two grounds: (1) the prosecutor had re-interviewed the girlfriend and defense counsel wished to review a written report of the interview, once it had been completed; and (2) defense counsel had never met defendant outside of court to discuss the trial, and defendant had just that morning "mentioned additional witnesses that should be interviewed and possibly subpoenaed."[1]

         ¶ 10 The prosecution responded that it "did have conversations with the [girlfriend] . . . [b]ut it is consistent with what's in discovery" and not "anything exculpatory or really ground shattering . . . ." On defendant's other ground, the prosecution did not comment.

         ¶ 11 The trial court ultimately denied defendant's motion for a continuance. First, it noted that, without any indication that the girlfriend had said something "relevant and important" to the prosecution, "the other side [does not] automatically get[] a chance to continue the matter" just because the prosecution re-interviewed her. Concerning "defendant's noncooperation, " the trial court stated, "[T]hat's his business. . . . [H]e made a choice. . . . If he decides not to talk to his attorney, I know that puts his attorney in an exceedingly difficult situation. . . . But her client has to take the case seriously . . . ."

         ¶ 12 We review a trial court's denial of a motion for a continuance for an abuse of discretion. See People v. Alley, 232 P.3d 272, 274 (Colo.App. 2010). "A trial court abuses its discretion in denying a motion to continue if, under the totality of the circumstances, its ruling is manifestly arbitrary, unreasonable, or unfair." People v. Smith, 275 P.3d 715, 721 (Colo.App. 2011) (quoting People v. Mandez, 997 P.2d 1254, 1265 (Colo.App. 1999)).

         ¶ 13 "No mechanical test exists for determining whether the denial of a request for a continuance constitutes an abuse of discretion. Rather, the answer must be found within the circumstances of each case, particularly in the reasons presented to the trial judge at the time of the request." People v. Roybal, 55 P.3d 144, 150 (Colo.App. 2001). To obtain a reversal, a defendant must also show he or she was actually prejudiced by the denial of the continuance. Alley, 232 P.3d at 274.

         ¶ 14 Here, we perceive no abuse of discretion or prejudicial error committed by the trial court.

         ¶ 15 With respect to defendant's first ground for requesting a continuance, there was no suggestion either at the time or later, when the defense received a written report of the prosecution's interview of the girlfriend, that she had said anything new or different from what she had previously said. See People v. Rivers, 727 P.2d 394, 399 (Colo.App. 1986) ("Because no new information was unearthed . . ., the trial court did not abuse its discretion in denying defendant's motion for continuance."). Indeed, defense counsel notified the court that she "had an opportunity to speak at length" with the prosecution about the content of the interview. And, during cross-examination, defense counsel specifically referenced the additional interview and questioned the girlfriend about particular statements she made to the prosecution at that time. Thus, we are not persuaded by defendant's assertion on appeal that "in order to adequately prepare for trial and to cross-examine [the girlfriend], the continuance was necessary."

         ¶ 16 With respect to defendant's other ground for requesting a continuance, as we read the record, any lack of communication between him and his counsel was the result of defendant's own actions, [2] for which the court need not grant a continuance. See Johnson v. People, 172 Colo. 72, 80, 470 P.2d 37, 42 (1970) (finding no abuse of discretion in the trial court's denial of a continuance where "the defendant had, at first, refused to cooperate with [his counsel], " leaving "[n]o real justification for the [continuance]" when the defendant asserted he was not prepared for trial); People in Interest of J.T., 13 P.3d 321, 322 (Colo.App. 2000) (finding no abuse of discretion in the trial court's denial of a continuance on the eve of trial where "[the defendant] was responsible for not making himself available to his attorney"); see also People v. Jenkins, 997 P.2d 1044, 1138 (Cal. 2000) (affirming denial of continuance sought because of the defendant's "persistent failure . . . to cooperate with counsel").

         ¶ 17 Further, the defense made no offer of proof regarding what substantive testimony defendant expected from the additional witnesses, let alone who they were. See United States v. Johnson, 977 F.2d 1360, 1366 (10th Cir. 1992) ("[W]hen a continuance is sought to obtain witnesses, the accused must show who . . . [the witnesses] are, what their testimony will be, that the testimony will be competent and relevant, that the witnesses can probably be obtained if the continuance is granted, and that due diligence has been used to obtain their attendance on the day set for trial." (quoting United States v. Harris, 441 F.2d 1333, 1336 (10th Cir. 1971))); cf. People in Interest of N.F., 820 P.2d 1128, 1133 (Colo.App. 1991) (noting where counsel makes no offer of proof as to what the witness's testimony would have been, the reviewing court will not consider the alleged error to be prejudicial if it cannot determine from the record how the exclusion of evidence harmed the defendant's case).

         ¶ 18 Under these circumstances, we perceive no error in the court's exercise of discretion to deny a continuance on these grounds.

         III. Conflict of Interest

         ¶ 19 Defendant contends that "the trial court erred in failing to conduct an adequate inquiry [into the deteriorated relationship between him and his counsel] and further, should have appointed conflict-free counsel to represent [him]." We are not persuaded.

         ¶ 20 "When a defendant objects to court-appointed counsel, the trial court must inquire into the reasons for the [defendant's] dissatisfaction." People v. Kelling, 151 P.3d 650, 653 (Colo.App. 2006). If the defendant establishes good cause (e.g., a complete breakdown in communication, a conflict of interest, or an irreconcilable conflict that could lead to an apparently unjust verdict), the court must appoint substitute counsel. Id. However, before the substitution of counsel is warranted, the court must confirm that the defendant has "some well[-]founded reason for believing that the appointed attorney cannot or will not competently represent him." Id. (quoting 3 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure § 11.4(b), at 555 (2d ed. 1999)).

         ¶ 21 Here, defendant asserts that a substitution of counsel was warranted by a conflict of interest that he had with his appointed counsel. But before the trial court, defendant did not move for a substitution of counsel, nor did he voice any objection to or dissatisfaction with counsel. Indeed, defendant said nothing to the trial court about any concerns he had, if any, with counsel. Having expressed no dissatisfaction with counsel, he was not entitled to have the court make any inquiry, much less provide him with different counsel.

         ¶ 22 Yet on appeal, defendant argues otherwise, asserting that the court was obliged to sua sponte make inquiries where the record demonstrated a conflict of interest arising from a "deteriorated" relationship or counsel's insistence that defendant plead guilty contrary to defendant's wishes.

         ¶ 23 Defendant's assertions are not supported by the record. With respect to the deterioration, it was defense counsel, not defendant, who indicated that they had had limited communication, and even then, only to suggest that she needed a continuance to adequately represent him:

[Defendant] and I have not met one time outside of court on this matter. When we appeared for the motions hearing, a new offer was extended to [him]. . . . I did speak with --by phone with [him] about that. And he ultimately rejected the offer. I have made myself available to [defendant] on a number of occasions. I have made discovery available to him, and here we stand a week before trial and we've never once reviewed this discovery together, old or new.
I am fearful of my ability to present an adequate defense for [defendant] without his assistance. Having gone through again with him this morning what the discovery contains, . . . he does believe that he can provide some information that would be helpful for me. . . .
And so, . . . I am asking for a continuance of this matter. . . . He is willing to waive [his] right [of speedy trial] in order to assist me in preparing his defense.

(Emphasis added.)

         ¶ 24 The type of "total breakdown" in communication which would warrant substitution of counsel must be evidenced by proof "of a severe and pervasive conflict with [the defendant's] attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible." United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002). Such a "total breakdown" is not evident from the record. To the contrary, defense counsel stated that she had discussed a possible plea agreement with defendant by phone and had made herself and the discovery available to defendant on multiple occasions. And, if anything, defense counsel's statements provided hope that the attorney-client relationship could improve because she said ...


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