State v. McCabe

SHEPARD, Justice.

This is an appeal by defendant-appellant Melvin A. McCabe, Jr. from a conviction of first degree burglary and grand larceny and the sentences imposed therefor. We affirm.

McCabe appears pro se on this appeal and hence we set out in its entirety what he denominates the “issues” presented:

“I. Is Defendant entitled to Counsel?

II. Was Defendant’s waiver of counsel made willingly, competently, and intelligently?

III. Did Defendant represent himself diligently conscientiously, and competently?

IV. Was Defendants right to a fair trial prejudiced by the States introduction of the tainted testimony of Donny and Kay Nelson?

V. Did the trial court error in failing to give an instruction on intent?

VI. Did the trial court error in giving a confusing and prejudicial instruction on reasonable doubt?

VII. Did the sentencing court abuse its discretion in sentencing defendant on the basis of information contained in the presentence investigation report that was materially incorrect?

VIII. Did the sentencing court abuse its discretion in imposing a sentence upon defendant which was unduly harsh under the circumstances?”

McCabe was charged with first degree burglary and grand larceny as the result of a break-in at a Boise business establishment and the theft of some 700 pounds of frozen meat, the value of which was approximately $1,000. McCabe lived with his sister and her husband, Donny and Kay Nelson, who were charged with receiving stolen property. The Nelsons allegedly sold a portion of the stolen meat to a third party. A portion of the stolen meat was found in the McCabe-Nelson residence, along with a shoe which belonged to McCabe and which matched a footprint found at the crime scene.

Both Donny and Kay Nelson were convicted of receiving stolen property and Kay Nelson was placed on probation, a condition of which was that she testify at McCabe’s upcoming , trial. The sentencing of Donny Nelson was deferred until the completion of the McCabe trial, at which time he also was placed on probation. Following McCabe’s trial, at which Donny and Kay Nelson testified against McCabe, the jury returned a verdict of guilty, judgment of conviction was entered, and McCabe was sentenced to an indeterminate term not to exceed ten years.

McCabe’s first three issues on appeal, although not completely articulated, appear to raise questions of competency of counsel and his right and ability to replace his appointed counsel with other counsel of his choice.

It is clear McCabe was entitled to appointed counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). It is also clear that the office of the public defender in Ada County was appointed as counsel for McCabe. It is also clear that a defendant is entitled to reasonably competent assistance of an attorney acting as his diligent, conscientious advocate. State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Prior to trial, McCabe had moved for the appointment of a substitute attorney and a hearing was held thereon. Counsel for McCabe furnished an affidavit dealing with all facets of the work on the case which counsel had performed up to the time of that hearing. Thereafter, the trial court ruled that McCabe was receiving the assistance of competent counsel. We find nothing in the record to indicate any error in that ruling of the trial judge. The sole apparent basis for McCabe’s desire for a substitute attorney was that his appointed counsel had discussed with him the advisability of entering a guilty plea and had not secured the appointment of an investigator.

As to McCabe’s first assertion regarding counsel’s recommendation of a plea of guilty, we find it unpersuasive. Indeed, following counsel’s admitted investigation and preparation of the case, he might well have been derelict in failing to so advise his client in the hopes of entering into a plea bargain for the reduction of charges, reduction of sentence, or other possible benefits. As to McCabe’s second assertion regarding the appointment of an investigator, we likewise find it unpersuasive. As to the desirability or necessity for the appointment of an investigator, McCabe indicates only that such appointment was needed to find facts to impeach the credibility of the Nelsons. The record further indicates McCabe’s inability to furnish counsel with any information or leads upon which such investigator could operate. In sum, we find no abuse of discretion by the trial court in failing to appoint substitute counsel for McCabe.

McCabe’s contentions appear to resolve themselves into a format that because his appointed counsel advised a plea of guilty, counsel could have had no confidence in presenting defendant’s case at trial. The conclusion does not follow and the record at trial clearly demonstrates otherwise. Likewise, mere lack of confidence in otherwise competent counsel is not necessarily grounds for substitution of counsel in the absence of extraordinary circumstances. State v. Wozniak, 94 Idaho 312, 486 P.2d 1025 (1971); State v. Pepperling, 582 P.2d 341 (Mont.1978). We find no such extraordinary circumstances in the case at bar.

Following the denial of McCabe’s motion for substitute counsel, McCabe then elected to proceed at trial pro se. McCabe asserts that his decision to waive the assistance of counsel was not made willingly, competently and intelligently. We disagree. The record demonstrates that the trial judge repeatedly and meticulously sought to dissuade McCabe from his decision to waive counsel. The trial judge advised McCabe of the dangers of attempting to represent himself and present his defense in a criminal trial. When McCabe indicated he was adamant in his decision, the trial court attempted to persuade McCabe to allow counsel to sit with and advise him during the course of the trial. That suggestion was also rejected by McCabe. We hold the record clearly establishes a knowing and intelligent waiver of counsel by McCabe. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Just as an indigent criminal defendant has a right to appointed counsel, he also has the right to reject such representation and conduct his own defense. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

McCabe next contends that the testimony of Donny and Kay Nelson was “tainted” since they were “accomplices” and since the execution of their sentences for the crime of receiving stolen property was contingent upon their testifying favorably to the prosecution and against McCabe at the trial of McCabe. The record indicates evidence that the crimes of grand larceny and burglary had been completed prior to the involvement or awareness of the Nelsons. At best, then, the Nelsons were accessories after the fact, but were not accomplices within the meaning of the statute requiring corroboration of their testimony. State v. Murphy, 94 Idaho 849, 499 P.2d 548 (1972). Even assuming arguendo that Nelsons were accomplices and that therefore there was a need for the corroboration of their testimony, the record demonstrates ample corroboration therefor.

As to McCabe’s assertion that the Nelsons, as a condition of probation, were required to testify adverse to McCabe at trial, the record demonstrates otherwise. The Nelsons were only required to testify with no agreement as to the content of their testimony. The promise of leniency in exchange for testimony which is a full, fair and accurate account of the witness’s knowledge of facts surrounding the crime is permissible. People v. Lyons, 50 Cal.2d 245, 324 P.2d 556 (1958); Franklin v. State, 577 P.2d 860 (Nev.1978).

We have reviewed and considered the remaining assignments of error relating to instructions and abuse of discretion in sentencing and find them to be without merit. The conviction and sentence are affirmed.

DONALDSON, C. J., and BAKES and McFADDEN, JJ., concur.