State v. Lippert

Judge LANSING,

dissenting.

I respectfully dissent from Part 11(B) of the majority opinion. In my view, the district court here gave Lippert a “full and fair opportunity” to express his reasons for dissatisfaction with his appointed counsel. Specifically, on the date scheduled for trial, the court asked, ‘You don’t have anything you would like to say at this time Mr. Lippert?” Lippert responded, “Other than I was not given notice of this trial, this date, nor have I been represented, nor am I able at this time to say more.” Thereafter, Lippert reiterated his complaint that he had not been notified of the change of trial date and also said that his only discussion with defense counsel about preparation for trial was a conversation the prior evening of about a half-hour’s duration. While those allegations, if true, do not bespeak stellar performance by the appointed attorney, neither do they demonstrate such deficiency of counsel or breakdown of communications as to warrant appointment of substitute counsel. The district court also knew that appointed counsel had devoted considerable attention to the ease prior to trial. He conducted discovery, filed motions in limine to exclude evidence of other misconduct by Lippert, and vigorously participated in hearings on the motions.

The district court did not cut Lippert off, as occurred in State v. Peck, 130 Idaho 711, 946 P.2d 1351 (Ct.App.1997), but rather, allowed him an opportunity to fully explain his discontent with the attorney. It may have been preferable for the district court to probe further or to require the defense attorney to respond to Lippert’s assertions, but in my view the court satisfied its responsibility as defined by the Idaho Supreme Court in State v. Clayton, 100 Idaho 896, 898, 606 P.2d 1000, 1002 (1980). There the Supreme Court rejected a defendant’s argument that the trial court should have conducted a more detailed inquiry into the question of counsel’s competence or the source of any attorney-client conflict. The Court said: “The trial judge should not be required to act as an advocate for the defendant in a criminal proceeding. His only obligation was to afford defendant a full and fair opportunity to present the facts and reasons in support of his motion for substitution of counsel after having been made aware by the court of the problems involved.” As in Clayton, Lippert was afforded an ample opportunity to detail his complaints about the attorney. In light of the standard enunciated by the Supreme Court in Clayton, I cannot say that the district court here failed in its obligation to make an adequate inquiry. Therefore, I would affirm the judgment of conviction.