Boulder County District Court No. 14CR1657 Honorable Andrew
R. Macdonald, Judge
Philip
J. Weiser, Attorney General, Lisa K. Michaels, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan
A. Ring, Colorado State Public Defender, Dayna Vise, Deputy
State Public Defender, Denver, Colorado, for
Defendant-Appellant
OPINION
TAUBMAN, JUDGE
¶
1 Defendant, Timothy West, appeals the judgment of conviction
entered on a jury verdict finding him guilty of sexual
assault of a child under fifteen years of age, contributing
to the delinquency of a minor, and a class 4 drug felony. As
an issue of first impression, West, who represented himself
at trial, asks us to consider whether the trial court's
evidentiary and discovery rulings deprived him of his right
to self-representation. We conclude that they did not.
¶
2 He also contends that the trial court (1) violated his
right to a speedy trial; (2) erred by not releasing the
victim's juvenile records to him; (3) allowed improper
testimony bolstering the victim's credibility; (4) erred
by allowing the prosecution to untimely add counts that
contained a variance and trying those counts in the wrong
venue; and (5) cumulatively erred. We reject these
contentions as well and therefore affirm.
I.
Background
¶
3 In 2014, the People charged West with, among other things,
sexual assault of a child after he admitted to having sex
with the underage victim. Disregarding the trial court's
advisement, West waived his right to counsel, choosing
instead to proceed pro se.
¶
4 Throughout the course of the trial, the court repeatedly
explained the hazards of West representing himself, at times
making statements such as "he who represents himself has
a fool for a [client]" and "be prepared to live
with the consequence of [representing yourself], which is you
are not going to have a lot of resources that would be
available to you with court-appointed counsel."
¶
5 West continually asserted his right to a speedy trial. Over
West's objection that it would violate his speedy trial
rights, the court set his trial for June 22, 2015. West then
moved to reset the trial within what he maintained was the
statutory speedy trial period, drawing the court's
attention to a document he had placed in the mail on December
20, 2014, that purported to notify the court and prosecution
of his not guilty plea. The trial court denied his motion. On
June 2 and June 12, West again argued that his speedy trial
rights had been violated. The court rejected both arguments,
stating that the June 22 date was well within his speedy
trial period based on the prosecutor's argument that the
period began on the date of his original arraignment hearing
on January 16, 2015. On June 19, West made one final effort
to dismiss his charges for violation of his statutory and
constitutional speedy trial rights. The court denied the
motion, ruling that, even if he properly entered his plea on
December 20, 2014, June 22 was the first business day after
the statutory period expired and, thus, the trial date was
within the statutory speedy trial period.
II.
Speedy Trial
¶
6 West contends that the trial court violated his statutory
and constitutional rights to a speedy trial by setting his
trial date for June 22, 2015 - more than 180 days after he
initially mailed his notice of plea of not guilty on December
20, 2014.[1] We disagree.
A.
Standard of Review and Preservation
¶
7 We review de novo the trial court's interpretation of
Colorado's speedy trial statute and its analysis of the
constitutional right to a speedy trial. See People v.
Nelson, 2014 COA 165, ¶¶ 17, 25, 360 P.3d 175,
180-81. However, we review the court's findings of fact
for clear error, disregarding them only if the record is
devoid of support. Id. at ¶ 25, 360 P.3d at
181.
¶
8 It is undisputed that West preserved his statutory speedy
trial argument. For purposes of this opinion, we will assume
West also preserved his constitutional speedy trial argument.
B.
Applicable Law
¶
9 Both Federal and State Constitutions as well as a Colorado
statute protect a defendant's right to a speedy trial.
Id. at ¶ 22. While the Sixth Amendment to the
United States Constitution and article II, section 16 of the
Colorado Constitution guarantee the right, the speedy trial
statute implements it by prescribing a deadline within which
the defendant must be brought to trial after the right
attaches. Id. at ¶¶ 21-22, 360 P.3d at
180-81.
¶
10 The constitutional right to speedy trial attaches when a
defendant is formally charged with an offense or arrested and
continuously held in custody prior to the filing of formal
charges, whichever occurs first. Moody v.
Corsentino, 843 P.2d 1355, 1363 (Colo. 1993) (citing
United States v. Marion, 404 U.S. 307, 320 (1971));
see also People v. Chavez, 779 P.2d 375, 376 (Colo.
1989); People v. Glaser, 250 P.3d 632, 635
(Colo.App. 2010).
¶
11 The United States Supreme Court has announced, and
Colorado has adopted, a four-factor balancing test to
determine whether a trial court has violated a
defendant's constitutional right to a speedy trial.
Barker v. Wingo, 407 U.S. 514, 530 (1972);
Chavez, 779 P.2d at 376. The Barker test
requires us to weigh (1) the length of the delay; (2) the
reason for the delay; (3) the defendant's assertion of
his or her right to a speedy trial; and (4) prejudice to the
defendant. 407 U.S. at 530.
¶
12 The Barker Court described the length of the
delay as "a triggering mechanism," requiring the
court to first consider whether the length of delay is
"presumptively prejudicial." Id. Unless
the court deems the length prejudicial, it need not analyze
the remaining factors. Id. at 531. In determining
whether the first factor triggers the rest of the analysis,
the court may take into consideration the particular
circumstances of the case, such as the seriousness and
complexity of the charged offense. Id.
¶
13 Colorado's statutory right to a speedy trial imposes a
more precise period: six months from the date of the entry of
a plea of not guilty. § 18-1-405(1), C.R.S. 2018. The
period ends at the commencement of trial. Id. While
the prosecution and the trial court bear the burden of
compliance, the defendant bears the burden of proving that he
or she was denied a speedy trial. Saiz v. Dist.
Court, 189 Colo. 555, 557-58, 542 P.2d 1293, 1295
(1975).
C.
Analysis
¶
14 We first address whether, under Barker, the trial
court violated West's constitutional right to a speedy
trial. Thus, we look to the length of the alleged delay to
assess its presumptive prejudice. Here, the constitutional
right attached at the time of West's arrest, which was
eight months and six days before the first day of trial. Our
jurisprudence suggests that the length of delay becomes
presumptively prejudicial as it approaches one year. See
People v. Sandoval-Candelaria, 2014 CO 21, ¶ 35,
321 P.3d 487; Nelson, ¶ 23, 360 P.3d at 181
(citing Doggett v. United States, 505 U.S. 647, 651
n.1 (1992)); Glaser, 250 P.3d at 635; see also
People v. Brewster, 240 P.3d 291, 299 (Colo.App. 2009)
(concluding that seven-and-one-half months was not a
presumptively prejudicial delay). Accordingly, we conclude
that the delay here did not prejudice West and thus we need
not consider the remaining factors.
¶
15 Turning to West's argument that the trial court
violated his statutory right to a speedy trial, we agree with
the People that, even if he invoked his right by mailing his
plea of not guilty on December 20, 2014, trial commenced on
June 22, the first business day after the conclusion of the
six-month period. § 2-4-108(2), C.R.S. 2018; People
v. Hampton, 696 P.2d 765, 771 n.8 (Colo. 1985). Thus, we
need not determine which event started the speedy trial clock
because, even if we assume that West's mailing of
December 20, 2014, did so, the June 22 trial date fell within
the statutory period.
III.
Right to Self-Representation
¶
16 West argues that the trial court, through multiple
discovery and evidentiary rulings, deprived him of his
fundamental right to self-representation. We disagree.
A.
Standard of Review
¶
17 Whether a trial court denied a defendant's right to
self-representation poses a question of law we review de
novo. People v. Abdu, 215 P.3d 1265, 1267 (Colo.App.
2009). If we conclude that a trial court denied a
defendant's right to self-representation, structural
error results, and we must reverse. See People v.
Waller, 2016 COA 115, ¶ 23, 412 P.3d 866, 872
(stating that structural error, and not harmless error
analysis, applies to the denial of the right to
self-representation).
B.
Applicable Law
¶
18 Though the State and Federal Constitutions guarantee the
right to self-representation, see Colo. Const. art.
II. § 16; Faretta v. California, 422 U.S. 806,
821 (1975), the predominant right to counsel requires the
trial court to ensure that the defendant has knowingly and
intelligently relinquished the right to counsel in favor of
proceeding pro se. See People v. Arguello, 772 P.2d
87, 93 (Colo. 1989). Accordingly, the Arguello court
acknowledged that "[c]ourts must indulge every
reasonable presumption against finding a waiver of the
fundamental right to counsel." Id.
¶
19 Thus, when a defendant asserts a violation of his or her
right to self-representation, appellate courts generally
consider whether the trial court appointed counsel despite
the defendant's unequivocal waiver of his or her right to
counsel. See United States v. McNeal, 663 Fed.Appx.
732, 736 (10th Cir. 2016) (unpublished) (holding that the
trial court did not violate the defendant's right to
self-representation when it did not grant him a continuance
to prepare his defense); People v. Johnson, 2015 COA
54, ¶¶ 15-25, 356 P.3d 1024, 1030-31 (reversing the
trial court's judgment based on its denial of the
invocation of his right to represent himself); Abdu,
215 P.3d at 1269 (concluding that the trial court did not
violate the defendant's right to self-representation when
the defendant did not unequivocally assert his right).
C.
Analysis
¶
20 A defendant's constitutional right to
self-representation proscribes the imposition of unwanted
counsel, but it does not insulate the defendant from the
pitfalls of a poorly mounted pro se defense. West submits
nine broad allegations of the trial court denying his right
to self-representation, but we count at least twenty-four
separate instances in which West asserts that the trial
court's actions thwarted his right to
self-representation:
(1) denying him the right to appear pro se at the advisement
...