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People v. West

Court of Appeals of Colorado, First Division

August 29, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Timothy West, Defendant-Appellant.

          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 ...

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