City
and County of Denver District Court No. 14CR6552 Honorable
Morris B. Hoffman, Judge
Philip
J. Weiser, Attorney General, John T. Lee, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Katayoun A. Donnelly, Alternate Defense Counsel, Denver,
Colorado, for Defendant-Appellant
Fox,
Judge, Furman, J., concurs Ashby, J., dissents
OPINION
FOX,
JUDGE
¶
1 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;
[1] (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
Tresco's contentions and affirm. The last argument raises
a novel question in Colorado.
I.
Background
¶
2 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 Tresco's 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 Tresco's request at that time,
stating that it would do so after jury selection. However,
the trial court never addressed Tresco's request, and the
public defender represented Tresco at trial.
¶
3 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
mandatory parole.
¶
4 Because we were unable to determine on the record before us
whether the trial court erred by denying Tresco's 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.[2] With the benefit of the remand findings
and record, we can now address Tresco's contentions.
II.
Right to Counsel
¶
5 Tresco's appellate counsel argues that the trial court
violated Tresco's Sixth Amendment rights by denying him
counsel of choice. We disagree.
A.
Applicable Law
¶
6 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
ways.
¶
7 Under the Sixth Amendment, non-indigent defendants have the
right to counsel of their choice. See People v.
Ronquillo, 2017 CO 99, ¶ 16. 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).
¶
8 "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. 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 defendant's
request for substitute appointed counsel is within the trial
court's discretion, and we will not disturb such a ruling
absent an abuse of that discretion. See Johnson,
¶ 29.
¶
9 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. Tresco's appellate
counsel's 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 Sixth Amendment.
¶
10 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.
B.
Trial Record
¶
11 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 don't really know -
THE COURT: Well, I'm not here to give you legal advice,
sir. I'm sorry. That's not appropriate for me to do.
And this document is essentially completely irrelevant to me
and these proceedings.
[TRESCO]: Actually, there's some relevance because, Your
Honor, these are the things that led me to believe -
THE COURT: It would only be relevant if you're filing or
requesting that your counsel be withdrawn on the morning of
trial.
[TRESCO]: Then, yes. Let's proceed with that, Your Honor.
¶
12 The trial court then explicitly recognized that it was
required to evaluate Tresco's request and stated that it
would do so after jury selection. But, the trial court never
addressed Tresco's request.
¶
13 By not ruling on the request, the trial court implicitly
denied Tresco's request for replacement of his public
defender. But, because the court did not investigate the
factual basis for the request, we had no record from which to
determine whether the court's implicit denial was an
abuse of discretion. Having remanded with directions to
investigate the basis for Tresco's request and to
determine ...