[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
and County of Denver District Court No. 14CR6552, Honorable
Morris B. Hoffman, Judge
J. Weiser, Attorney General, John T. Lee, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
A. Donnelly, Alternate Defense Counsel, Denver, Colorado, for
Defendant, Gabriel A. Tresco, appeals the judgment of
conviction entered on a jury verdict finding him guilty of
second degree assault. Tresco argues that the trial court
erred by (1) denying his request that his counsel be removed;
(2) admitting expert testimony that was not properly
disclosed to defense counsel; and (3) considering, at
sentencing, a video recording from five years before the
events of this case in which Tresco discussed his gang
affiliation. We reject Trescos contentions and affirm. The
last argument raises a novel question in Colorado.
The prosecution charged Tresco with second degree assault for
punching a man in the face — ultimately causing nerve
damage — in in the parking lot of a bar, allegedly
because the man groped Trescos fiancée. On the first
day of trial, Tresco notified the trial court that he had
filed a grievance against his defense counsel, a public
defender. The trial court asked Tresco if he was requesting
that the public defender be removed, and Tresco said that he
was. The trial
court declined to address Trescos request at that time,
stating that it would do so after jury selection. However,
the trial court never addressed Trescos request, and the
public defender represented Tresco at trial.
The jury found Tresco guilty of second degree assault, and
the trial court sentenced him to eight years in the custody
of the Department of Corrections (DOC) and three years of
Because we were unable to determine on the record before us
whether the trial court erred by denying Trescos request
that his counsel be removed, we remanded the case to the
trial court with directions to address whether Tresco was
entitled to different appointed counsel on the first morning
of trial. With the benefit of the remand
findings and record, we can now address Trescos contentions.
Right to Counsel
Trescos appellate counsel argues that the trial court
violated Trescos Sixth Amendment rights by denying him
counsel of choice. We disagree.
The Sixth Amendment provides that a criminal defendant has
the right to the assistance of counsel. U.S. Const. amend.
VI. Although this right applies equally to indigent and
non-indigent defendants, it manifests itself in different
Under the Sixth Amendment, non-indigent defendants have the
right to counsel of their choice. See People v.
Ronquillo, 2017 CO 99, ¶ 16, 404 P.3d 264. In contrast,
an indigent defendant who requests court-appointed counsel
does not get to choose which court-appointed lawyer will
represent him. Id. at ¶ 18. The Sixth Amendment
instead guarantees that indigent defendants receive
constitutionally effective representation from conflict-free
counsel. Id. at ¶ 19; see also People
v. Shreck, 107 P.3d 1048, 1055 (Colo.App. 2004).
"When an indigent defendant objects to his
court-appointed counsel, the trial court must investigate the
reasons for the dissatisfaction." People v.
Johnson, 2016 COA 15, ¶ 30, 381 P.3d 348. This is a
fact-intensive investigation into the details of the
disagreement or conflict between the defendant and appointed
counsel. See People v. Bergerud, 223 P.3d
686, 694 (Colo. 2010). "Unless the complaint underlying
a request for substitution of counsel is sufficiently
detailed, the court may not rule on the motion without
conducting a proper hearing at which both attorney and
client testify as to the nature of their conflict."
Id. (citation omitted). The decision on whether to
grant a defendants request for substitute appointed counsel
is within the trial courts discretion, and we will not
disturb such a ruling absent an abuse of that discretion.
See Johnson, ¶ 29.
Tresco was represented by appointed counsel at trial. On the
first morning of trial, he did not ask to replace his
appointed counsel with nonappointed counsel of his choice.
Nor did he ask to represent himself. Trescos appellate
counsels argument that his Sixth Amendment right to counsel
of choice was violated is therefore inapposite to Tresco;
because Tresco had appointed counsel, not private counsel, he
did not have the right to counsel of his choice under the
However, the Sixth Amendment did guarantee Tresco
conflict-free appointed counsel who would represent him
effectively. Tresco asked for replacement of his public
defender due to an asserted conflict.
On the first morning of trial, Tresco informed the trial
court that he had filed a grievance against his attorney and
the following exchange occurred:
THE COURT: [I]s he intending to now file a motion on the
morning of trial to require
disqualification of counsel? Is that the intention here?
[TRESCO]: I would like for you to review that first to see
which way I should go, because I dont really know —
THE COURT: Well, Im not here to give you legal advice, sir.
Im sorry. Thats not appropriate for me to do. And this
document is essentially completely irrelevant to me and these
[TRESCO]: Actually, theres some relevance because, Your
Honor, these are the things that led me to believe —
THE COURT: It would only be relevant if youre filing or
requesting that your counsel be withdrawn on the ...