No. 58969-5-I.The Court of Appeals of Washington, Division One.
June 16, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-1-07368-0, Nicole MacInnes, J., entered April 4, 2006.
Affirmed by unpublished per curiam opinion.
PER CURIAM.
Rattany Chhoeum argues that the trial court violated his Sixth Amendment right to be represented by the counsel of his choice when it refused his request for a substitution of counsel four days before the beginning of his first degree murder trial. But that right is not absolute; the trial court has broad discretion to balance the defendant’s interest in counsel of choice against the public’s interest in the fair and efficient administration of justice. We conclude that the trial court did not abuse its discretion in denying Chhoeum’s request. We affirm.
FACTS
Rattany Chhoeum was charged with premeditated first degree murder, felony first degree murder, and first degree assault, all with firearm enhancements. At trial, the State introduced evidence and testimony of the following events: Chhoeum was a member of the “Asian Boys” sect of the Crips gang. At around 10 pm on April 29, 2005, Chhoeum met up at a bowling alley with Marinda Chhoeum, Sophan Poy, Mary Chan, Christna Bun, Keo Del Torre, Jim Brown Pin, Christine Phommahasay, Sarasen Chhonn, and Michelle Moungmany. About three hours later, they left the bowling alley and drove in four cars to a gas station in Burien. There they encountered Kimsan Chom, who was a member of the “Little Ruthless Boys” sect of the Bloods gang, and his friend, Sok Leng Chan.
The rival gang members noticed each other. Chom flashed a gang hand symbol, and Chhoeum pulled out a gun. Chom jumped into Chan’s car, and they started to drive away. Chhoeum attempted to prevent Chom and Chan from driving away by boxing them in with his car, but they managed to escape. Chhoeum gave pursuit, with Moungmany and Bun riding as passengers. Chhoeum fired his gun at Chan’s car, then lost control and drove off the road. One bullet hit Chan’s right rear taillight and another passed through the rear windshield and driver’s side headrest, hitting the back of Chan’s head. Chan ran off the road and later died as a result of the gunshot wound. Chom sustained broken vertebrae in the car crash.
Chhoeum’s friends arrived at the scene and pushed Chhoeum’s car out of the ditch. They all drove to Poy’s house, and the gun used in the shooting was put on a table. Pin and Torre heard Chhoeum describe the shooting. Several of Chhoeum’s friends agreed to keep quiet about it.
On May 13, 2005, the State charged Chhoeum with one count of second degree murder. On May 25, 2005, Catherine McDonald and R. Daewoo Kim were appointed as Chhoeum’s counsel. Chhoeum fled to Rhode Island, but he was soon found, arrested, and extradited to Washington. McDonald and Kim withdrew, and on August 1, 2005, Chhoeum was arraigned and represented by new counsel Michael Danko. A case-setting hearing was set for mid-August, and on August 18, 2005, it was continued to early September.
On September 7, 2005, the trial date was set for October 25, 2005. On October 13, the parties agreed to continue the trial date to January 17, 2006, for additional investigation, negotiation, discovery review, and to amend the information. On December 6, 2005, the State amended the information to add one count of first degree assault. On December 30, 2005, the parties held an omnibus hearing and confirmed the mid-January trial date. On January 17, 2006, the trial was continued one day because the attorneys were in trial on other cases. This happened again on January 18. 2006.
On January 19, 2006, Chhoeum for the first time moved to substitute attorney Peter Connick for defense counsel Michael Danko. Connick advised Chhoeum not to answer questions, and Danko objected to Connick’s representation. Noting that Connick was not counsel of record, the trial court asked Chhoeum to explain why he wanted a new attorney. Chhoeum stated, “I would like Mr. Connick to represent me in this, because I haven’t heard from Mr. Danko. I’ve only seen him twice ever since he worked my case, so I would feel more comfortable if Pete Connick would take this over.” Report of Proceedings (RP) (Jan. 19, 2006) at 4.
The trial court stated that it had reviewed the State’s opposition brief and then asked when the case was originally set for trial and when it was continued. The prosecutor explained the procedural history of the case and reiterated that the State was ready to proceed. The prosecutor also stated that he was unaware of any specific problem with Danko’s representation and that Danko had been active regarding the investigation and negotiation of the case. The court asked Danko to respond, and Danko stated,
Your Honor, I have met regularly with Mr. Chhoeum. The last few conferences — this was after negotiations broke down and the State amended — Mr. Chhoeum has not wanted to talk with me. Our conversations have been very brief, but I have kept him informed of where we are and assured him that I am prepared to take it to trial.
Id. at 5-6.
The trial court asked Connick whether he was prepared to go to trial that day, and Connick confirmed that he was not. The court then denied Chhoeum’s motion to substitute counsel, concluding that there was “no good cause” to grant substitution. Connick then filed a motion to reconsider the court’s denial of the motion for substitution, in which he claimed that he would be prepared to try the case in one month. The record does not indicate whether the court ruled on this motion.
The trial began on January 23, 2006. The following day, the State amended the information to add an alternative count of first degree felony murder. The State listed 68 potential witnesses, including 28 likely witnesses for trial. Seven of the State’s key witnesses were friends, relatives, or fellow gang members of Chhoeum’s. Detective John Mattsen testified that he and his team spent over 182 hours during a three-week period trying to track down these witnesses. He said that he did not attempt to contact them until a week before the scheduled January 17 trial date because he was concerned that they would try to evade testifying if the trial were to be delayed. Chhonn, Moungmany, Bun, Poy, Phommahasay, and Pin were eventually located. Most initially refused to testify and had to be ordered to do so. Four were held in custody during the trial and released only after testifying.
Shortly after trial began, the State received declarations from Torre, Pin, Phommahasay, Poy, Bun, and Marinda, each stating that they felt pressured when questioned by police and that the statements given were lies. Torre, Pin, Phommahasay, and Poy later admitted at trial that the declarations were false. Poy also said that he was approached by Connick, who claimed that he was Chhoeum’s attorney and who gave him a template for his declaration.
Chhoeum was convicted as charged and received a standard range sentence. He now appeals his conviction.
ANALYSIS
Chhoeum argues that the trial court violated his constitutional right to counsel of choice by denying his request to substitute Connick for Danko.
The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” “`It is settled law that under the Sixth Amendment criminal defendants “who can afford to retain counsel have a qualified right to obtain counsel of their choice.”‘” State v. Roth, 75 Wn. App. 808, 824, 881 P.2d 268
(1994) (quoting United States v. Washington, 797 F.2d 1461, 1465
(9th Cir. 1986)). But “the right to retained counsel of choice is not a right of the same force as other aspects of the right to counsel.” Roth, 75 Wn. App. at 824. The right to counsel of choice “is circumscribed in several important respects.” Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 100 L. Ed. 2d 140 (1988). “Among those limits is the principle that `[a] defendant’s right to retained counsel of his choice doesn’t include the right to unduly delay the proceedings.'” Roth, 75 Wn. App. at 824 (quoting United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir. 1993)).
The trial court has broad discretion in ruling on a motion for a continuance sought to obtain new counsel.[1] State v. Price, 126 Wn. App. 617, 632, 109 P.3d 27 (2005); United States v. Gonzalez-Lopez, 548 U.S. 140, 152, 126 S. Ct. 2557, 165 L. Ed. 2d 409 (2006) (acknowledging that the trial court has “wide latitude in balancing the right to counsel of choice against the needs of fairness and against the demands of its calendar”). “`[O]nly an unreasoning and arbitrary “insistence upon expeditiousness in the face of a justifiable request for delay” violates the defendant’s right.'” Roth, 75 Wn. App. at 824
(quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75 L. Ed. 2d 610 (1983)). The factors to be considered include (1) whether the court had granted previous continuances at the defendant’s request, (2) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation, and (3) whether available counsel is prepared to go to trial.[2] Roth, 75 Wn. App. at 825. Moreover, the request for counsel of choice must be timely asserted. State v. Chase, 59 Wn. App. 501, 506, 799 P.2d 272 (1990). “`In the absence of substantial reasons a late request should generally be denied, especially if the granting of such a request may result in delay of the trial.'” Id. (quoting State v. Garcia, 92 Wn.2d 647, 655-56, 600 P.2d 1010 (1979)).
We conclude that the trial court did not abuse its discretion in denying Chhoeum’s substitution request. First, his request was not timely. It was made on the first scheduled day of trial (four days before trial actually began), more than eight months after charges had been filed and after the trial court had already granted a lengthy continuance, albeit jointly requested. Furthermore, his request came after Detective Mattsen had begun the process of seeking to contact the uncooperative witnesses. Second, Chhoeum did not articulate a sufficiently legitimate cause for dissatisfaction with Danko’s representation. Chhoeum stated that he would “feel more comfortable” with Connick’s representation because he had only seen Danko twice. But Danko maintained that he had met regularly with Chhoeum and kept him apprised of the proceedings, even though Chhoeum was uncommunicative. Third, Danko stated that he was prepared to go to trial, whereas Connick acknowledged that a continuance would be necessary because he needed an additional month to prepare. These factors, when examined as a whole, do not favor a further delay of at least one month to accommodate Chhoeum’s desire to substitute counsel.
Chhoeum argues that his request was not untimely because it was made within the speedy trial period as soon as his family was able to raise the funds to retain Connick. He also contends that the State would suffer no prejudice from a one-month delay because the case was not unduly complicated. We disagree with Chhoeum’s characterization of the case. This was a complex first degree murder trial featuring dozens of potential witnesses, some of whom were extremely uncooperative. Chhoeum argues that the witnesses would have been uncooperative no matter when they were contacted, but this disregards the fact that Detective Mattsen had already begun the process of contacting them at the time Chhouem made his request. Any further trial delays could have made it more difficult to locate them.
We conclude that the trial court did not abuse its discretion in balancing Chhoeum’s Sixth Amendment right to counsel of choice against the public’s interest in prompt and efficient administration of justice. We affirm.
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