State v. Bos ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JENNIFER CORA BOS, Appellant.
No. 1 CA-CR 13-0610
FILED 9-23-14
Appeal from the Superior Court in Maricopa County
No. CR2012-144759-001
The Honorable Jeffrey Rueter, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Terry J. Reid
Counsel for Appellant
MEMORANDUM DECISION
Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge Lawrence C. Winthrop joined.
STATE v. BOS
Decision of the Court
G E M M I L L, Judge:
¶1 Defendant Jennifer Cora Bos appeals her conviction for
resisting arrest, a class six felony. On appeal, Bos contends that the trial
court erred in failing to conduct an adequate inquiry into the basis for her
motion for new counsel. For the reasons that follow, we affirm.
BACKGROUND
¶2 We view the facts in the light most favorable to upholding the
jury’s verdict. State v. Mitchell, 204 Ariz. 216, 217 ¶ 3, 62 P.3d 616, 617 (App.
2003). On May 10, 2012, Bos was pulled over after a Chandler police officer
observed her driving erratically. When the police officer approached her
car, Bos became agitated and refused to comply with the officer’s request
that she provide identification. She also refused to exit the vehicle upon
request, resulting in a physical altercation between her and the police
officer. Bos was later handcuffed and transported to the police station. In
November 2012, Bos was charged by complaint and information with
resisting arrest, a class six felony.
¶3 On the first day of trial in July 2013, prior to jury selection, Bos
made a motion for new counsel:
THE COURT: [T]hank you. And, Mr. Wallace, my staff told
me that there was something that [sic] wanted to bring up
prior to the jury being here.
[DEFENSE COUNSEL]: It’s not necessarily me, but Ms. Bo[s]
has a motion for the Court.
THE COURT: All right.
[BOS]: I was just wondering if there is a way I could get a new
public defender.
I am not confident that I have the best representation for my
decision. There––there have been disagreements on
important things about my case that I think is relevant and
I’m concerned that the evidence has not been obtained for my
defense, and that it’s not being used and I’m concerned about
not being prepared for trial.
And there seems to be like a breakdown in communication
between my attorney and I, and so I’m––that’s what I’m
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STATE v. BOS
Decision of the Court
asking for. I’m––I have––lately, we’ve not been
communicating effectively.
THE COURT: [Defense counsel], do you have any comments?
[DEFENSE COUNSEL]: Your Honor, I can’t address anything
that Ms. Bos has to say because it has to do with
attorney/client privileged communication.
THE COURT: Well, we’ve ordered a jury. The jury is going
to be on the way up here [in] a minute. There is always––but
sometimes there is conflict between attorneys and clients. You
haven’t really named anything specific, so I can’t say that I
find that your relationship with [defense counsel] is
irreparably damaged.
So I’m going to deny your motion for new counsel. And you
can go get the jury.
¶4 When trial commenced the next day, Bos once again
attempted to address the trial court regarding her concerns:
[BOS]: May I speak?
THE COURT: You can ask your attorney a question.
[BOS]: Can I –
[DEFENSE COUNSEL]: Your Honor, Ms. Bos has a list that
she has formulated of the issues that she’s had with this case
from the inception, including what she believes is a lack of
evidence. She wants to present that to the Court.
I’m advising her not to do that. It contains statements. I’m
asking her not to do it; however, she’s insisted upon speaking
with the Court to discuss some of the issues she’s had.
THE COURT: I mean, once the––I, mean, I don’t want––
specifically what I mean––what is the problem? Do you want
to tell me what –
[DEFENSE COUNSEL]: I can be as general as possible
without going into specific statements.
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STATE v. BOS
Decision of the Court
Ms. Bos believes there was certain evidence that was not
collected either by the State or by myself that she believes
shows her innocence, and she believes that she has a lack of
mistrust [sic] in myself, as well as the process because this was
not collected. And she feels as though this evidence would be
clearly exculpatory if it were found.
THE COURT: All right. Ms. Bos, I don’t want to hear from
you regarding that. I denied your motion to change counsel.
And any issues you have, they can be addressed during an
appeal, if we get to that point. So there is nothing that can be
done about it today. I don’t want to hear about it, so I’m not
going to hear any statements from you.
Also, it’s improper because you are not representing yourself.
You’re represented by counsel.
¶5 The jury found Bos guilty of the felony charge of resisting
arrest. The trial court suspended imposition of sentence and ordered that
Bos serve a twelve-month term of supervised probation. Bos filed a timely
notice of appeal. This Court has jurisdiction under Article VI, section 9 of
the Arizona Constitution and Arizona Revised Statutes §§ 12-120.21, 13-
4031, and 13-4033.
ANALYSIS
¶6 Bos’s sole contention on appeal is that the trial court abused
its discretion by failing to conduct an inquiry into the basis for Bos’s request
for new counsel. We apply an abuse of discretion standard when reviewing
denials of motions for new counsel. State v. Moore, 222 Ariz. 1, 15 ¶ 77, 213
P.3d 150, 164 (2009).
¶7 The Sixth Amendment, as well as the Arizona Constitution,
guarantees to criminal defendants the right to representation by competent
counsel. U.S. Const. amend. VI; State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d
1066, 1069 (1987); see also Ariz. Const. art 2, § 24. “[A] request for new
counsel should be examined with the rights and interest of the defendant
in mind[,] tempered by exigencies of judicial economy.” LaGrand, 152 Ariz.
at 486, 722 P.2d at 1069. When a defendant makes a request for substitution
of counsel, the trial court has a duty to inquire on the record as to the basis
for that request. State v. Torres, 208 Ariz. 340, 343 ¶ 7, 93 P.3d 1056, 1059
(2004); see also State v. Paris-Sheldon, 214 Ariz. 500, 505 ¶ 11, 154 P.3d 1046,
1051 (App. 2007). The nature of this inquiry is dependent on the specificity
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STATE v. BOS
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of the defendant’s allegations. Torres, 208 Ariz. at 343 ¶ 8, 93 P.3d at 1059.
A motion supported only by “generalized complaints about differences in
[trial] strategy may not require a formal hearing or an evidentiary
proceeding.” Id.; see also State v. Cromwell, 211 Ariz. 181, 187 ¶ 30, 119 P.3d
448, 454 (2005) (“To constitute a colorable claim . . . a defendant must allege
facts sufficient to support a belief that an irreconcilable conflict exists
warranting the appointment of new counsel”).
¶8 In State v. Torres, a trial court did not conduct an adequate
inquiry into the basis for a defendant’s substitution motion. 208 Ariz. at 343
¶ 7, 93 P.3d at 1059. Two months before trial, the defendant filed a written
motion explaining that he “could no longer speak with his lawyer about the
case, he did not trust him, he felt threatened and intimidated by him, there
was no confidentiality between them, and his counsel was no longer
behaving in a professional manner.” Id. at 342 ¶ 2, 93 P.3d at 1058. The
Arizona Supreme Court held that his allegations gave rise to a colorable
claim for substitution, and accordingly, the trial court abused its discretion
when it dismissed the motion without holding an evidentiary hearing to
determine the basis for that claim. Id. at 343 ¶ 9, 93 P.3d at 1059.
¶9 In contrast, in State v. Gomez, 231 Ariz. 219, 293 P.3d 495(2012), a trial court did not abuse its discretion when it denied a defendant’s
motion for new counsel without holding an evidentiary hearing. There, the
defendant filed a written motion alleging that his attorney was unprepared,
unprofessional, unqualified, and had not devoted enough time to his case.
Id. at 224 ¶ 20, 293 P.3d at 500. Without further oral argument or
evidentiary proceedings, the trial court denied the motion at a pre-trial
conference, explaining that it not only lacked specificity, but was
inappropriate given its timing so close to the date of trial. Id. at 224–25 ¶¶
23-24, 293 P.3d at 501–02. On appeal, the Arizona Supreme Court explained
that because there was no indication that further inquiry into the motion
would have revealed any “additional facts beyond those already before the
court,” the trial court did not abuse its discretion by denying it in the
interest of judicial economy. Id. at 225–26 ¶ 29, 293 P.3d at 501–02.
¶10 Similarly, the timing of the motion is critical in this case. Bos’s
request for substitution was made on the day that trial was scheduled to
begin. There is no indication that Bos could not have made this motion at
an earlier time. In fact, on the second day of trial defense counsel stated
that Bos disagreed with his strategy “from the inception” of the case. The
record suggests that the court denied the motion, at least in part, in the
interest of preventing delay in the judicial proceedings. This was not an
abuse of the court’s discretion. See LaGrand, 152 Ariz. at 486–87, 733 P.2d at
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STATE v. BOS
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1069–70 (explaining that judicial economy should be considered when
ruling on a motion for substitution).
¶11 Bos also argues that the trial court’s response to her motion
constituted “a complete lack of inquiry” into the basis for her request for
substitution. The record does not support this contention. Bos was given
the opportunity to explain the basis of her motion before the start of trial.
She stated that she had general disagreements as to “important things about
[her] case” and was worried about a seeming “breakdown in
communication.” Based on these statements, the trial court determined that
she had not presented facts giving rise to a colorable claim for substitution
of counsel. As such, it dismissed her motion without further proceedings
or an evidentiary hearing. Although ordinarily the trial court should have
inquired further when faced with such a request, Bos made her motion at
the start of the trial, rather than well in advance of trial. In light of the
timing of the request as well as the lack of specificity in Bos’s expression of
concerns, the trial court did not abuse its discretion when it decided the
motion without further questioning.
¶12 Additionally, even if the trial court had conducted a more
thorough line of inquiry as to the basis for her motion, Bos has not provided
any evidence as to the facts that such an inquiry would have revealed. Once
a colorable claim for substitution has been made, a defendant is entitled to
new counsel only if there has been a complete breakdown in the attorney-
client relationship or there exists an irreconcilable conflict between the
parties. Torres, 208 Ariz. at 342 ¶ 6, 93 P.3d at 1058. Bos had apparently
prepared a list of grievances or concerns regarding her case, but defense
counsel did not submit this list as part of the record or as an offer of proof.
On appeal, Bos has not offered additional evidence or more specific
information to support her contention that new counsel was warranted.
Based on the record before us, it appears that Bos’s complaints about
counsel were based primarily on differing opinions about trial strategy.
This is not a sufficient basis for granting a motion for new counsel. See
Cromwell, 211 Ariz. at 186 ¶ 29, 119 P.3d at 453 (“[a] single allegation of lost
confidence in counsel does not require the appointment of new counsel,
and disagreements over defense strategies do not constitute an
irreconcilable conflict”). The court considered the specificity and gravity of
Bos’s claims, in addition to the timing of the motion and the interest of
judicial economy. It did not abuse its discretion by denying the motion
without further inquiry.
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STATE v. BOS
Decision of the Court
CONCLUSION
¶13 The trial court’s denial of the motion for substitution did not
constitute an abuse of discretion. Therefore, we affirm.
:jt
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