State v. Coven , 236 Ariz. 393 ( 2015 )


Menu:
  •                                IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    DANIEL S. COVEN, Appellant.
    No. 1 CA-CR 13-0524
    FILED 1-8-2015
    Appeal from the Superior Court in Maricopa County
    No. CR2011-133433-001
    The Honorable Susanna C. Pineda, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Colby Mills
    Counsel for Appellee
    Law Offices of Thomas Jacobs, Tucson
    By Thomas Jacobs
    Counsel for Appellant
    OPINION
    Judge Kenton D. Jones delivered the Opinion of the Court, in which
    Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
    STATE v. COVEN
    Opinion of the Court
    J O N E S, Judge:
    ¶1            Daniel S. Coven appeals his convictions for resisting arrest
    and disorderly conduct, each a class one misdemeanor. Coven argues the
    trial court erred in permitting his fourth privately retained attorney to
    withdraw from his representation following the attorney’s avowal of an
    ethical conflict, without thereafter providing Coven court-appointed
    counsel for trial. He further argues error in the admission of evidence
    obtained from his iPod during the search incident to arrest. We find the
    trial court did not abuse its discretion in permitting Coven’s attorney to
    withdraw as a result of an ethical conflict, and that he was not an indigent
    person entitled to court-appointed counsel. Additionally, although
    admission of the iPod evidence was error, there was no prejudice.
    Therefore, we affirm Coven’s convictions and probation.
    FACTS1 AND PROCEDURAL HISTORY
    ¶2            On June 30, 2011, in contravention of notices posted
    throughout the Maricopa County Superior Court Southeast Facility in
    Mesa, Arizona, prohibiting photography or videotaping within the
    courthouse, Coven took a digital image of a superior court clerk with his
    iPod. Coven refused to comply with requests from the clerk, the superior
    court security officer, and law enforcement to delete the photograph.
    Instead he became increasingly loud and refused to move from the line of
    customers waiting to file paperwork with the clerk’s office. When advised
    he was being placed under arrest for his disruptive behavior, Coven forced
    his hands apart, pinned one arm underneath himself, and kicked at the
    officers in an attempt to prevent them from applying handcuffs. When
    Coven was finally secure, he was physically escorted from the scene.
    ¶3            Following a three-day jury trial in May 2013, Coven was
    found guilty of resisting arrest and disorderly conduct. At the sentencing
    phase, the trial court suspended imposition of sentence and placed Coven
    on probation for one year on each count to be served concurrently. Coven
    1      We view the evidence “in the light most favorable to sustaining the
    conviction” and resolve all reasonable inferences against the defendant.
    State v. Guerra, 
    161 Ariz. 289
    , 293, 
    778 P.2d 1185
    , 1189 (1989). We also
    resolve any conflict in the evidence in favor of upholding the verdicts. 
    Id. 2 STATE
    v. COVEN
    Opinion of the Court
    timely appealed. This Court has jurisdiction pursuant to Arizona Revised
    Statutes (A.R.S.) sections 12-120.21(A)(1),2 13-4031 and -4033(A)(1).
    DISCUSSION
    I.     Withdrawal and Appointment of Counsel
    ¶4              Coven first argues the trial court erred in permitting his
    fourth attorney to withdraw thirty-four days prior to the scheduled trial
    date without appointing a lawyer to represent him. “We will overturn a
    trial court’s decision on a motion to withdraw only if the trial court abused
    its discretion.” State v. Jones, 
    185 Ariz. 471
    , 482, 
    917 P.2d 200
    , 211 (1996). A
    trial court’s interpretation of a constitutional right, including the right of an
    indigent criminal defendant to counsel, is a question of law we review de
    novo. Robinson v. Hotham, 
    211 Ariz. 165
    , 168, ¶ 9, 
    118 P.3d 1129
    , 1132 (App.
    2005).
    A.     The Trial Court Did Not Abuse Its Discretion in Permitting
    Coven’s Fourth Attorney to Withdraw Following an Avowal
    of an Ethical Conflict.
    ¶5            In support of his claim, Coven asserts the trial court erred
    because it did not make a detailed inquiry into the basis for withdrawal, but
    simply accepted counsel’s avowal of an ethical conflict.
    ¶6             Coven’s fourth, and final, counsel filed a motion to withdraw
    on the basis that “[c]ircumstances ha[d] developed in the course of the
    representation that ha[d] caused an irremediable breakdown in the
    attorney client relationship,” which prevented the attorney from providing
    effective assistance of counsel. Upon inquiry by the trial court, counsel
    confirmed the problem was not “in any way, shape, or form related to any
    fees, attorney’s fees, and compensation,” further stating:
    It’s difficult to elaborate. Basically, based on privileged
    communications, Your Honor, it seems that all of the efforts I
    have put forward to effectively defend the case, I’m not — I’m
    not receiving any assistance, in my opinion. I don’t believe,
    based on some of the statements that have been made, that I
    2     Absent material revisions from the relevant date, we cite a statute’s
    current version.
    3
    STATE v. COVEN
    Opinion of the Court
    can ethically proceed at this point with regards to some other
    issues as well.
    I cannot ethically, based on some of the statements that have
    been made, I simply — I don’t believe that ethically I can
    proceed.
    The trial court informed Coven that the ethical rules prohibited it from
    delving further into the attorney-client relationship, accepted counsel’s
    avowals as “an Officer of the Court” over Coven’s objections and entered
    an order allowing her to withdraw.
    ¶7               The Arizona Rules of Professional Conduct provide that a
    lawyer “shall withdraw from the representation of a client if . . . the
    representation will result in violation of the Rules of Professional Conduct
    or other law.” Ariz. R. Sup. Ct. 42, ER 1.16(a)(1). Upon filing of such a
    motion, the trial court must determine whether good cause has been shown
    before permitting the withdrawal, Ariz. R. Crim. P. 6.3(b), and may request
    an explanation for the withdrawal. Ariz. R. Sup. Ct. 42, ER 1.16, cmt. 3. The
    trial court should not condition grant or denial of the request on the
    attorney’s willingness to disclose confidential information; rather, “[t]he
    lawyer’s statement that professional considerations require termination of
    the representation ordinarily should be accepted as sufficient.” Id.; see also
    State v. Davis, 
    110 Ariz. 29
    , 31, 
    514 P.2d 1025
    , 1027 (1973) (“The trial court
    should give great weight to a representation by counsel that there is a
    conflict . . . .”); Maricopa Cnty. Public Defender’s Office v. Superior Court, 
    187 Ariz. 162
    , 166, 
    927 P.2d 822
    , 826 (App. 1996) (concluding disclosure of
    confidential information not ordinarily required when counsel avows he
    has an ethical conflict requiring withdrawal).
    ¶8           Contrary to Coven’s contentions, the trial court made
    adequate inquiry into the circumstances necessitating withdrawal, and
    acted within its discretion in granting the request based upon counsel’s
    avowals that ethical considerations mandated her withdrawal. Therefore,
    we find no error in the trial court’s order permitting Coven’s fourth
    attorney to withdraw.
    B.     The Trial Court Did Not Err in Denying Coven’s Request
    for Court-Appointed Counsel.
    ¶9            Coven also argues the trial court erred by denying his request
    for court-appointed counsel prior to trial. To support his argument, Coven
    relies on Arizona Rule of Criminal Procedure 6.3(c), which provides that no
    attorney shall be permitted to withdraw after a case has been set for trial
    4
    STATE v. COVEN
    Opinion of the Court
    “except upon motion accompanied by the name and address of another
    attorney, together with a signed statement by the substituting attorney that
    he or she is advised of the trial date and will be prepared for trial.”
    ¶10           First, although a proper motion to withdraw will designate a
    substitute attorney, we have previously held that failure to do so may be
    overlooked if substantial justice to the defendant is done and the error is
    not so prejudicial to defendant’s rights as to require reversal. State v. Schaaf,
    
    169 Ariz. 323
    , 331, 
    819 P.2d 909
    , 917 (1991). Because Coven’s fourth
    privately retained attorney could not ethically continue her representation,
    we find no prejudice to Coven in the failure of his counsel to comply with
    Rule 6.3(c).
    ¶11           Second, Coven bases his argument on the right to counsel
    guaranteed by the U.S. and Arizona constitutions, which require the State
    to provide an indigent criminal defendant with appointed counsel. U.S.
    Const. amend. VI and XIV, § 1; Ariz. Const. art. 2, § 24; State v. McGonigle,
    
    103 Ariz. 267
    , 269, 
    440 P.2d 100
    , 102 (1968). However, Coven consistently
    refused to provide the trial court with financial information, admitted he
    was not indigent,3 and does not challenge that fact on appeal. Indeed,
    during the course of these proceedings, Coven hired four separate private
    attorneys. Because he was not indigent, Coven was not entitled to court-
    appointed counsel, 
    McGonigle, 103 Ariz. at 269
    , 440 P.2d at 102, and the trial
    court did not err by declining to appoint him an attorney.4
    3       In his June 2012 “Application for Court-Appointed Counsel,” Coven
    “acknowledge[d] he ha[d] the financial resources” to retain private counsel,
    adding that “[c]ompleting indigent defense financial forms in this case
    would be pointless since he would not meet the indigent criteria and the
    filing would be a burden on [him]” because he “wished to keep his financial
    and personal information private.”
    4       Coven argues the trial court should have appointed counsel
    pursuant to Arizona Rule of Criminal Procedure 6.7(d), which authorizes
    the court to order a defendant to pay the costs of court-appointed counsel
    if the defendant has enough funds to offset a portion of those costs. Thus,
    Coven maintains that the court could have appointed counsel, for which he
    would then have paid. Coven’s argument fails to acknowledge the opening
    lines of the rule, which state that the court may order such payment if, “in
    determining that a person is indigent,” it also determines that the person
    5
    STATE v. COVEN
    Opinion of the Court
    ¶12           Finally, Coven asserts the trial court erred in finding he
    waived his right to counsel without engaging in a colloquy to determine if
    his waiver was voluntary. See, e.g., State v. McLemore, 
    230 Ariz. 571
    , 578,
    ¶ 22, 
    288 P.3d 775
    , 782 (App. 2012). Coven correctly states that a formal
    colloquy was not provided, and he did not expressly waive his right to
    counsel. However, “[e]ven in the absence of an express waiver, a defendant
    can implicitly waive his right to counsel through his conduct.” State v.
    Hampton, 
    208 Ariz. 241
    , 244, ¶ 7, 
    92 P.3d 871
    , 874 (2004) (citing United States
    v. Goldberg, 
    67 F.3d 1092
    , 1100 (3d Cir. 1995)). “In some circumstances,
    persistent disruptive or dilatory conduct by a defendant will support a
    determination that the defendant ‘waived’ his right to counsel.” 
    Id. (citing Goldberg,
    67 F.3d at 1100). This type of waiver can occur after a court warns
    of the consequences of continued misconduct and explains the implications
    of a waiver of counsel. 
    Id. (citations omitted).
    ¶13            Here, as early as August 2012, after Coven’s second privately
    retained attorney withdrew, the trial court informed him that if he did not
    retain new counsel, he would be representing himself. Additionally, Coven
    admitted having consulted other private attorneys who expressed a
    willingness to take his case after the fourth attorney withdrew. The record
    is devoid of explanation as to why Coven did not follow through with
    obtaining new representation. Rather, the record reflects numerous
    discussions, in open court, confirming Coven’s self-representation and
    attempting to address his apparent refusal to take any action to remedy the
    situation, his only response being repeated demands for court-appointed
    counsel.
    ¶14             When the trial court offered to provide advisory counsel to
    assist with Coven’s self-representation, Coven stated that, if that
    appointment occurred, he would make an “immediate request” that his
    then-advisory counsel act as his attorney of record for the trial. When the
    court did not permit Coven to “back-door the system,” Coven chose to
    forego any further participation in the proceedings, stating “I intend to be
    here at the beginning of every proceeding and . . . if I don’t have an attorney
    present . . . then I’m going to waive my right to be here and I will show up
    again the next day and the next day for however long that is.” While the
    trial court informed Coven, on the record, of the perils inherent in his
    decision to proceed pro per and in absentia, Coven appeared at the beginning
    has some financial resources. When read in totality, Rule 6.7(d) does not
    authorize the appointment of counsel for non-indigent defendants.
    6
    STATE v. COVEN
    Opinion of the Court
    of trial each day to waive his presence and participation, and permitted the
    trial to proceed in his absence.5
    ¶15           Under these circumstances, we find Coven implicitly waived
    any right to counsel through his unreasonable behavior, which was clearly
    aimed at thwarting his prosecution and effectively delayed his trial for
    nearly two years following the incident.
    II.    Suppression of iPod Evidence
    ¶16           Coven next argues the trial court erred in admitting a digital
    image of the court clerk taken from his iPod because it was (1) irrelevant
    and (2) obtained illegally in the absence of a search warrant. In response to
    Coven’s motion to suppress this evidence, the State argued the evidence
    established the basis for placing Coven under arrest, and a warrant was
    unnecessary because the search of the iPod was “incident to arrest.” The
    court admitted the evidence although acknowledging it was of marginal
    relevance to the resisting arrest charge.
    ¶17            We review a trial court’s ruling on a motion to suppress for
    an abuse of discretion. State v. Zamora, 
    220 Ariz. 63
    , 67, ¶ 7, 
    202 P.3d 528
    ,
    532 (App. 2009). However, even if a trial court erroneously denies a motion
    to suppress, we will not overturn a verdict if we find the error to be
    harmless. State v. Solano, 
    187 Ariz. 512
    , 519, 
    930 P.2d 1315
    , 1322 (App. 1996).
    “‘Error, be it constitutional or otherwise, is harmless if we can say, beyond
    a reasonable doubt, that the error did not contribute to or affect the
    verdict.’” 
    Id. (quoting State
    v. Bible, 
    175 Ariz. 549
    , 588, 
    858 P.2d 1152
    , 1191
    (1993)).
    ¶18           On appeal, the State acknowledges the U.S. Supreme Court’s
    recent decision in Riley v. California, ___U.S. ___, 
    134 S. Ct. 2473
    , 2495 (2014),
    holding police must obtain a warrant prior to searching a cell phone seized
    incident to arrest. Nonetheless, the State argues that, even assuming the
    5      Coven argues that allowing him to waive his presence at the
    beginning of trial each day, and proceeding in his absence without “making
    arrangements” for legal representation, resulted in a series of impermissible
    ex parte proceedings. Coven cites no authority for this proposition;
    therefore, we will not address it further. See ARCAP 13(a)(6) (requiring
    argument in appellate brief contain “citations to the authorities, statutes,
    and parts of the record relied upon”); Ritchie v. Krasner, 
    221 Ariz. 288
    , 305,
    ¶ 62, 
    211 P.3d 1272
    , 1289 (App. 2009) (deeming waived an issue
    unsupported by legal authority).
    7
    STATE v. COVEN
    Opinion of the Court
    warrantless search of the iPod was impermissible, any error in admitting
    the evidence was harmless. We agree.
    ¶19            At trial, the clerk testified that Coven admitted taking her
    photograph in violation of courthouse rules, and then became angry and
    loud when asked to delete it. The security officer and law enforcement
    officer confirmed that Coven became aggressive and refused to delete the
    images upon their requests, which ultimately caused the disturbance that
    led to his arrest. During these interactions, Coven never denied taking the
    clerk’s photograph with his iPod. The witnesses’ testimony is further
    supported by a courthouse security video, which captured Coven’s refusal
    to follow instructions to either delete the photograph or move out of the
    line of customers waiting to file documents with the clerk, as well as his
    struggle with court personnel and the arresting officers.
    ¶20           This uncontroverted evidence supports the jury’s verdict,
    even if the images obtained from the iPod had not been shown to the jury.
    Therefore, we find, beyond a reasonable doubt, that any error resulting
    from the admission of evidence obtained from a warrantless search of
    Coven’s iPod was harmless.
    CONCLUSION
    ¶21           For the foregoing reasons, we affirm Coven’s convictions and
    resulting term of probation.
    :ama
    8