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Allen v. State4/2/2002
on with this case."
[ ] Assuming the truth of these allegations, appellant did not demonstrate good cause to justify the appointment of substitute counsel. First, appellant had no right to the appointed attorney of his choice or desired experience, and the district court noted its assessment of counsel's experience in defending cases before it. Second, an attorney has a duty to give the accused an "'honest appraisal of his case.'" McKee v. Harris, 649 F.2d 927, 932 (2 nd Cir. 1981), cert. denied, 456 U.S. 917 (1982) (quoting Brown v. United States, 264 F.2d 363, 369 (D.C. Cir.), cert. denied, 360 U.S. 911 (1959)). That "a criminal defendant views this sort of frank advice as prejudgment of guilt does not thereby convert good representation into good cause." McKee, 649 F.2d at 932. Third, a general loss of confidence or trust alone is insufficient to warrant substituting new counsel. Stenson, 940 P.2d at 1272.
[ ] Appellant filed another motion dated August 16, 1999, expressing a desire to explain his "considerable concern regarding the total lack of communication and personal conflict between defendant and appointed counsel which has undermined the faith and belief by defendant in his attorney's desire and ability to research, build and present a proper and well planned defense." He requested that new counsel be appointed to represent him. An identical motion dated October 11, 1999, was filed on November 15, 1999. It does not appear that the district court acted expressly on either motion or conducted a formal inquiry into these particular contentions. The State does not cite to any such inquiry in the record.
[ ] A district court has a duty to make some formal inquiry into, or engage the defendant in a colloquy regarding, the defendant's reasons for dissatisfaction with his appointed counsel when substitution of counsel is requested. United States v. Anderson, 189 F.3d 1201, 1210 (10 th Cir. 1999) (quoting Johnson v. Gibson, 169 F.3d 1239, 1254 (10 th Cir.), cert. denied, 528 U.S. 972 (1999)); United States v. Graham, 91 F.3d 213, 221 (D.C. Cir. 1996), cert. denied, 519 U.S. 1136 (1997). Such an inquiry not only helps the defendant (especially when the request is pro se) "adequately to express the reason for his dissatisfaction with counsel, thereby promoting confidence in the integrity of the process and in the jury's verdict," but also "creates an opportunity for the court to ease the defendant's concern if it is ill-founded . . .." Graham, 91 F.3d at 221. However, even if appellant demonstrates that the district court did not properly address his motions to substitute counsel, he must demonstrate that the error was prejudicial to his case (i.e., that he was not afforded effective representation as guaranteed by the Sixth Amendment). Graham, 91 F.3d at 221. This Court having found that appellant's defense counsel was not ineffective, appellant has not met his burden on this issue.
[ ] Lastly, the following occurred in the jury's presence after Tina Evans testified the first day of trial:
[APPELLANT]: Excuse me, Your Honor. Before we continue, may I make a brief statement?
THE COURT: I don't think you should. Have you conferred with [defense counsel]?
[DEFENSE COUNSEL]: This is new to me.
[PROSECUTOR]: Your Honor, this is probably something that shouldn't be before the jury.
[APPELLANT]: I just want to make a statement for the record, Your Honor. I don't believe that I'm getting adequate assistance of counsel. [Defense counsel] is refusing to bring forth discrepancies and statements made seven months ago and statements made -
THE COURT: Let's do it this way, sir. We're going to go ahead with the evidence. I not
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