IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah,

Plaintiff and Appellee,

v.

Jerry L. Graham,

Defendant and Appellant.

)

)

)

)

)

)

)

)

)

OPINION

Case No. 20100827‐CA

F I L E D

(November 29, 2012)

  2012 UT App 332

‐‐‐‐‐

Second District, Ogden Department, 081901761

The Honorable Scott M. Hadley

Attorneys: Randall W. Richards and Jason B. Richards, Ogden, for Appellant

Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee

‐‐‐‐‐

Before Judges Orme, Roth, and Christiansen.

ORME, Judge:

¶1 Defendant appeals from his conviction on two counts of unlawful sexual activity

with a minor.  See Utah Code Ann. § 76‐5‐401 (2008).  Defendant claims that his waiver

of the right to counsel at trial was not knowing and voluntary and that both of his trial

attorneys were constitutionally ineffective.  We affirm.
1

Defendant was represented by two attorneys during his trial and is now

represented by a third attorney on appeal.  We refer to the trial attorneys in the order

that they represented Defendant, i.e., first counsel and second counsel.

20100827‐CA 2

BACKGROUND

¶2 Defendant was charged in August 2008 with two counts of unlawful sexual

activity with a minor.  Over the course of his prosecution, Defendant proved to be

difficult.  For example, his first court appearance was delayed because he refused to

appear, and his preliminary hearing was postponed six times at his request.

¶3 At a pretrial conference held in December 2009, Defendant requested a bench

trial and waived his right to a jury trial.  After the court granted Defendant’s request,

Defendant’s first counsel1 stated that he wanted to “make a record” concerning a

disagreement that he and Defendant had about which witnesses to call at trial.  First

counsel stated that Defendant wanted to call several witnesses, including Defendant’s

ex‐wife, who in counsel’s judgment would not provide admissible testimony, would

make the minor victim “look[ ] even more vulnerable,” and would “do more harm than

good.”  Defendant then raised several concerns he had with first counsel, one of which

was that first counsel illegally took money from clients in other cases.  First counsel

interrupted and told Defendant that he was “lying on the record.”  Defendant requested

that the court order first counsel to subpoena his requested witnesses.  The court

refused the request, telling Defendant it would not “order your counsel to take a

different trial strategy.”  Defendant then asked the court to dismiss first counsel,

claiming that there was a “conflict of interest” and that counsel was “not defending

[him] to his utmost.”  The court denied that request as well.

¶4 When Defendant’s bench trial commenced two days later, Defendant informed

the court that “[first counsel] is hereby removed as my attorney as of today.”  He asked

the court to appoint him a new attorney and to subpoena his requested witnesses.  First

counsel responded by explaining that he did not want to call Defendant’s requested

witnesses “[s]ince it comes down to strategy, and strategy being mine and mine alone, I

will not add to the burden, even though he thinks it’s not adding to his burden, by

calling a witness who will make him look worse than he already does.”  First counsel

stated that he did not believe that he and Defendant had an actual conflict and

explained, “The only conflict is he disagrees with me as [to] strategy.”
20100827‐CA 3

¶5 The court agreed with first counsel, stating, “I can’t find that there’s a reason to

remove [first counsel] and replace him with somebody else. . . .  So I think your choices

are if you want a free attorney, it will be [first counsel], or you can represent yourself.”

Defendant initially ignored these options and continued to request that another lawyer

be appointed, all the while refusing to waive his right to counsel.  The court reiterated

to Defendant that he could avail himself of the assistance of first counsel or he could

choose to represent himself.  Defendant stated that if limited to those choices, he would

represent himself.  Despite that statement, however, Defendant refused to sign a waiver

of counsel.

¶6 Trial began, and the prosecution gave its opening statement.  Immediately after,

Defendant informed the court that he was willing to waive his right to counsel and to

sign a waiver to that effect.  The court conducted the appropriate colloquy to ensure

that the waiver was both knowing and voluntary.  After the waiver, first counsel was

appointed to act as standby counsel.  The court explained to Defendant, “If you have

questions about the law you can ask him about that.  If you have questions about

strategy you can ask him about that.  He’ll be right there for you.”  Defendant requested

a continuance to prepare his defense.  The prosecutor objected, “I just don’t think that

you get to waive your right to Counsel on the morning of trial, frankly after we’ve

already started trial, and then ask for a continuance because you have a difference of

opinion as to strategy.”  The court denied the continuance but informed Defendant that

it would be willing to reconsider the motion at the close of the State’s case.

¶7 The first witness called by the State was the victim.  She testified that Defendant

engaged her in sexual activity on numerous occasions during a three‐month period in

2004.  She described three of the incidents in particular, offering approximate dates,

locations, and details.  The State also called the police officer who initially spoke with

Defendant about his involvement with the victim, a discussion initiated by Defendant

after the police were called to the home of a relative of the victim because an

“emotionally distraught” Defendant was pacing in the backyard, ranting about the

“betrayal of his beliefs.”
2

Defendant and first counsel conferred at least twenty times during cross‐

examination of the victim.

20100827‐CA 4

¶8 Defendant cross‐examined both witnesses, conferring with first counsel multiple

times throughout his examination.2

  During his cross‐examination of the police officer,

Defendant seemingly attempted to pose a hypothetical to the officer.  The prosecutor

objected multiple times on relevance grounds.  First counsel then interjected, apparently

to correct Defendant about a misunderstanding of fact.  Defendant responded, “Okay.

But it doesn’t matter.”

¶9 When Defendant later attempted to ask the officer about a conversation that the

officer had with a witness in the course of his investigation, the court sustained a

hearsay objection.  Defendant asked first counsel, “It’s hearsay is what she said?”  First

counsel responded, “It’s hearsay.”  Defendant and first counsel proceeded to confer off

the record after Defendant asked how he could “get this information” into evidence.

Defendant then asked first counsel on the record whether he would need to call the

witness directly to obtain information about what the witness had told the officer.  This

exchange followed:

[First counsel]:  If she was a good witness, one you would

call—

[Defendant]:  Hold on.  No, no, no, sir, I didn’t ask you

character.  I said she would—

[First counsel]:  Well, I’m not going to answer in a half assed

fashion, so don’t ask me a question in a half ass—

[Defendant]:  Whoa, half ass.

Defendant and first counsel continued to argue on the record.  First counsel noted

Defendant’s “belligerence” and “maltreatment” of him and claimed that Defendant had

called him “racist.”  Defendant told the court that he had accused first counsel of being

“biased” but not “racist.”
20100827‐CA 5

¶10 During this argument, the court repeatedly asked Defendant to move on and

continue questioning the officer.  Defendant asked the court to rule on whether

“biased” meant “racist” and refused to ask the officer any further questions.  First

counsel also urged Defendant to move on, saying, “Continue on.  I don’t care.”  When

Defendant refused to proceed with his cross‐examination of the officer, the court

threatened to cut off the questioning.  Defendant again asked the court to continue the

trial.  After that request was denied, Defendant asked the court to allow him to call a

witness in order to prove that he had not called first counsel racist.  In the ensuing

discussion, first counsel referred to Defendant as a “frustrating individual” and warned

him that he was “wasting colossal amounts of time” and “prejudicing [himself] in ways

we can’t even begin to describe.”  The court finally ended the discussion and called a

recess.

¶11 After the recess, first counsel apologized to the court and to Defendant for his

outburst.  The court agreed to consider “whether there isn’t a conflict at this point”

entitling Defendant to new counsel.  Defendant responded by again asking for a

continuance.  Oddly, first counsel opposed the motion.  He stated, “[Defendant]’s doing

everything he can to create a conflict so that you will continue this case and get him

someone else who is going to tell him the same thing.”  Despite his objection, first

counsel did acknowledge the obvious personal conflict between himself and Defendant

but maintained that their issues stemmed from disagreements about strategy.

¶12 The trial judge noted that Defendant had been represented by first counsel in

three recent cases assigned to that judge and informed Defendant, “As long as you were

following your attorney’s advice, I thought it went extremely well for you.”  The court

went on to tell Defendant,

I can’t find any fault in what [first counsel]’s advised you

insofar as what I’ve witnessed.  But then when I watch your

behavior, it seems like it’s all against your best interest.  It

takes a monumental effort from a Court’s standpoint to

separate your behavior from what the facts of this case are

because your behavior is very trying on the patience of

everybody.

Defendant continued to insist that there was a conflict of interest.  The court agreed that

“there’s a problem now.”  First counsel was excused, but the court told Defendant, “I
20100827‐CA 6

think it has been a good idea until just the last moment, but it—and I think he’s helped

you tremendously.  You have relied on him.  I’ve watched you.”  The trial was then

adjourned.

¶13 The court held a hearing in January 2010 to appoint new counsel for Defendant.

The court appointed second counsel to act only as standby counsel because of

Defendant’s earlier waiver of his right to counsel and, perhaps, because Defendant also

contested the selection of second counsel.  In April 2010, second counsel informed the

court that Defendant asked him to file a motion for a mistrial.  Second counsel

explained, “I have not done that . . . because frankly, I could not in good faith find a

basis that I would feel comfortable signing pleadings under Rule 11[.]”  The court and

second counsel clarified that second counsel was acting only as standby counsel for

Defendant, but second counsel indicated that he believed that he was required to file

any motions Defendant wished to make.  The trial was postponed for several months

while Defendant’s competency was evaluated.  Defendant was ultimately found

competent, but before trial resumed he sent a pro se letter to the court seeking

assistance in negotiating a plea bargain with the State.  Defendant admitted to having

previously done things to “buy time” when the State did not offer him a deal he found

acceptable.

¶14 Trial finally resumed in September 2010.  Defendant again attempted to have

second counsel excused because second counsel, like first counsel, refused to assist

Defendant in subpoenaing his ex‐wife.  Second counsel informed the court that he

“could not in good conscience and good faith subpoena her.”  The court denied

Defendant’s request.

¶15 For reasons not apparent from the record, second counsel acted as Defendant’s

actual counsel, rather than merely as standby counsel, during the second phase of trial.

Second counsel cross‐examined the police officer, conducted direct examination of

Defendant, and delivered closing argument.  During his testimony, Defendant claimed

never to have had any sexual contact with the victim.  During his closing argument,

second counsel argued that the minor had been coached and that there were

inconsistencies in her testimony.

¶16 The court found Defendant guilty on both counts.  The court prepared a written

ruling in which it found that the minor victim was a credible witness while Defendant

was not.  The court observed that, although the victim had testified to between fifteen
3

The right to self‐representation in criminal proceedings is also recognized by the

Utah Constitution and by statute.  See Utah Const. art. I, § 12; Utah Code Ann. § 77‐1‐

6(1)(a) (2008).

20100827‐CA 7

and twenty sexual encounters with Defendant, she did not provide enough particularity

about most of the incidents to establish sexual activity beyond the two counts filed by

the State.  With the assistance of new appellate counsel, Defendant now challenges his

convictions.

ISSUES AND STANDARD OF REVIEW

¶17 Defendant claims that the initial waiver of his right to counsel was invalid.

“Whether [a defendant] voluntarily, knowingly, and intelligently waived his right to

counsel is a mixed question of law and fact.”  State v. Pedockie, 2006 UT 28, ¶ 23, 137 P.3d

716.  We review the court’s factual findings for error and its legal conclusions for

correctness.  See State v. Vancleave, 2001 UT App 228, ¶ 5, 29 P.3d 680.

¶18 Defendant also claims that he was denied his right to the effective assistance of

counsel through the actions of both first counsel and second counsel.  “An ineffective

assistance of counsel claim raised for the first time on appeal presents a question of

law.”  State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

ANALYSIS

I.  Defendant’s Waiver of the Right to Counsel Was Knowing and Voluntary.

¶19 The Sixth and Fourteenth Amendments to the United States Constitution

guaranty criminal defendants the right to counsel.  See Duncan v. Louisiana, 391 U.S. 145,

149 (1968); State v. King, 2008 UT 54, ¶ 15, 190 P.3d 1283.  In Faretta v. California, 422 U.S.

806 (1975), the United States Supreme Court held that the Sixth Amendment also

provides defendants the right to waive their right to counsel in favor of conducting their

own defense.3

  See id. at 836.  “Because a defendant’s choice of self‐representation often

results in detrimental consequences to the defendant, a trial court must be vigilant to

assure that the choice is freely and expressly made ‘with eyes open.’”  State v. Bakalov,
20100827‐CA 8

1999 UT 45, ¶ 15, 979 P.2d 799 (quoting Faretta, 422 U.S. at 835) (additional citation and

internal quotation marks omitted).

¶20 While a waiver of counsel must be voluntary, it need not be “entirely

unconstrained.”  Id. ¶ 17 (citation and internal quotation marks omitted).  “The accused,

although guaranteed the right to counsel by the Sixth Amendment, does not have the

absolute right to counsel of his or her own choosing.”  State v. Arguelles, 2003 UT 1, ¶ 87,

63 P.3d 731 (citation and internal quotation marks omitted).  The court may ask a

defendant “in the interest of orderly procedures, to choose between waiver of counsel

and another course of action as long as the choice presented to him is not

constitutionally offensive.”  Bakalov, 1999 UT 45, ¶ 17 (citation, internal quotation

marks, and brackets omitted).  “[R]equiring a defendant to choose between competent

appointed counsel and proceeding pro se does not amount to an involuntary decision,”

Arguelles, 2003 UT 1, ¶ 73, as defendants are “‘not entitled to pick and choose’ [their]

court‐appointed counsel ‘by either the process of an affirmative demand or the selective

elimination of other attorneys,’” Bakalov, 1999 UT 45, ¶ 20 (quoting State v. Wulffenstein,

733 P.2d 120, 121 (Utah 1986) (per curiam)).

¶21 Courts recognize three methods by which a defendant may waive his right to

counsel: express waiver, forfeiture, and waiver by conduct.  See State v. Pedockie, 2006

UT 28, ¶ 27, 137 P.3d 716.  “True waiver typically occurs when a defendant

affirmatively requests permission to proceed pro se.”  Id. ¶ 28.  For an express waiver to

be considered valid, the court must ascertain that the defendant made the decision

“knowingly and intelligently, being aware of the dangers inherent in self‐

representation.”  Id. ¶ 29.  Generally, a trial court conducts a “colloquy on the record,”

id., to determine whether a defendant is “‘aware of the dangers and disadvantages of

self‐representation,’” id. ¶ 26 (quoting Faretta, 422 U.S. at 835).

¶22 Although Defendant initially refused to sign a waiver, he informed the court

after the prosecution’s opening statement that he was willing to waive his right to

counsel and sign a waiver.  The court then conducted a colloquy on the record to ensure

that Defendant’s waiver was knowing and voluntary, and the court apprised Defendant

of the potential risks of foregoing counsel.  First counsel was then discharged as counsel

and appointed to act as standby counsel.

¶23 There is no claim that the colloquy or waiver form were insufficient.  Assuming

that counsel did not have an actual “conflict of interest” and was not constitutionally
4

We recognize the logic of the State’s position.  A defendant who has waived his

right to counsel would seem to have necessarily waived his right to the effective

assistance of counsel, standby or otherwise.

20100827‐CA 9

ineffective—issues we discuss in greater depth in section II of this

opinion—Defendant’s waiver must be regarded as valid.

II.  Defendant Fails To Demonstrate That He Was Denied the Right to

the Effective Assistance of Counsel.

¶24 Defendant claims that first counsel was ineffective because an “actual conflict of

interest” existed.  The thrust of this argument seems to be that his waiver of the right to

counsel was invalid because having to choose between counsel with a conflict of

interest and no counsel at all put him in the very situation condemned in State v.

Arguelles, 2003 UT 1, 63 P.3d 731.  See id. ¶ 74 (“After all, ‘[a] defendant cannot be forced

to proceed with incompetent counsel [because a] choice between proceeding with

incompetent counsel or no counsel is in essence no choice at all.’”) (quoting State v.

Bakalov, 1999 UT 45, ¶ 20, 979 P.2d 799) (additional citation and internal quotation

marks omitted).  He also contends that first counsel’s performance was objectively

deficient and therefore ineffective.  The State argues that there was no conflict of

interest; that first counsel was not ineffective under the tests set forth in either Strickland

v. Washington, 466 U.S. 668 (1984), or Cuyler v. Sullivan, 446 U.S. 335 (1980); and that

there is no right to the effective assistance of standby counsel.  We do not address the

State’s contention regarding the right to effective assistance by standby counsel because

we conclude that first counsel did not have a conflict of interest and was not

ineffective.4

¶25 Defendant also claims that second counsel was ineffective for failing to file a

motion for mistrial based on first counsel’s comments during the first day of trial.  The

State argues that this claim is inadequately briefed and is also without merit.  We

conclude that second counsel was not ineffective.

A.  First Counsel Did Not Have a Conflict of Interest.
20100827‐CA 10

¶26 Defendant argues that first counsel had a “conflict of interest,” entitling

Defendant to a presumption of prejudice.  The United States Supreme Court has held

that

a defendant who shows that a conflict of interest actually

affected the adequacy of his representation need not

demonstrate prejudice in order to obtain relief.  But until a

defendant shows that his counsel actively represented

conflicting interests, he has not established the constitutional

predicate for his claim of ineffective assistance.

Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980) (internal citation omitted).  Accord State v.

Taylor, 947 P.2d 681, 686 (Utah 1997) (“[W]hen an ineffectiveness claim is grounded on a

conflict of interest, we presume prejudice if the defendant demonstrates ‘that an actual

conflict of interest adversely affected his lawyer’s performance.’”) (quoting Cuyler, 446

U.S. at 348); State v. Johnson, 823 P.2d 484, 488 (Utah Ct. App. 1991) (“If the defendant

makes such a showing, prejudice need not be demonstrated to prevail on the claim.  The

court will presume the defendant was prejudiced by the lawyer’s performance.”)

(internal citation omitted).

¶27 Defendant contends that “in the present case, the trial court found an actual

conflict of interest, triggering this presumption of prejudice.”  Defendant is referring to

the court’s statement to first counsel, “I do think that there’s a problem now between

[first counsel] and [Defendant].  I mean, I’ve witnessed it here in the courtroom.  I think

that would be very difficult to be a client under those circumstances.”  It is an

unwarranted extrapolation, however, to assume that the “problem” between Defendant

and first counsel was the type of conflict of interest at issue in Cuyler.  Cuyler addressed

a situation in which the defendant’s lawyer was concurrently representing another co‐

defendant who had competing interests.  See 446 U.S. at 337–38.  The “conflict of

interest” contemplated by Cuyler and its progeny refers to “a division of loyalties” in

which counsel “struggle[s] to serve two masters.”  See Mickens v. Taylor, 535 U.S. 162,

172 n.5 (2002) (citation and internal quotation marks omitted).

¶28 While “‘conflict’ is . . . used in common parlance to describe a personality

conflict, an artistic conflict, a family conflict, and many other sorts of antagonism—even

war”—“legal conflict[ ] of interest” generally refers to “an incompatibility between the

interests of two of a lawyer’s clients, or between the lawyer’s own private interest and

those of the client.”  Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008).  First counsel
20100827‐CA 11

informed the court that “the only conflict is [Defendant] disagrees with me as [to]

strategy.”  While Defendant and first counsel repeatedly bickered on the record and

clearly experienced “conflict” in the colloquial sense, “[t]he fact that a defendant does

not get along with his attorney does not, standing alone, establish a denial of the

effective assistance of counsel.”  Gardner v. Holden, 888 P.2d 608, 622 (Utah 1994).

Therefore, while we recognize that first counsel’s interactions with Defendant during

the first day of trial were often unseemly and plagued by interpersonal discord,

Defendant fails to establish a legal conflict of interest, as opposed to a significant

personality clash, and is consequently not entitled to a presumption of prejudice under

Cuyler.

B.  Defendant Fails To Demonstrate That Either First Counsel or Second Counsel

Was Ineffective Under Strickland.

¶29 The Sixth Amendment grants criminal defendants the “‘right to the effective

assistance of counsel.’”  Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)).  To prevail on a claim of ineffective

assistance of counsel, “the defendant must show that counsel’s performance was

deficient” and “that the deficient performance prejudiced the defense.”  Id. at 687.  “The

fact that a defendant does not get along with his attorney does not, standing alone,

establish a denial of the effective assistance of counsel.  [A defendant] must also

establish that the animosity resulted in such a deterioration of the attorney‐client

relationship that the right to the effective assistance of counsel was imperiled.”  Gardner

v. Holden, 888 P.2d 608, 622 (Utah 1994).

[T]he cause of the breakdown—or who is to “blame”—in an

attorney‐client relationship significantly affects whether the

breakdown constitutionally requires the court to substitute a

defendant’s court‐appointed counsel. . . .  To successfully

show “good cause” for rejecting court‐appointed counsel, a

defendant must meet a heavy burden.  A defendant must do

more than show that he or she does not have a “meaningful

relationship” with his or her attorney.

State v. Scales, 946 P.2d 377, 382 (Utah Ct. App. 1997) (quoting State v. Wulffenstein, 946

P.2d 377, 382 (Utah Ct. App. 1997)).  Furthermore, we “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable
20100827‐CA 12

professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial

strategy.”  Strickland, 466 U.S. at 689 (citation and internal quotation marks omitted).  In

sum, to prove ineffective assistance, Defendant must show “that there was no

‘conceivable tactical basis for counsel’s actions.’”  State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d

162 (quoting State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App. 1998)) (emphasis omitted).

1.  Defendant Fails To Demonstrate That First Counsel Was Ineffective.

¶30 Defendant was a consistently obstreperous client.  While there was obviously

tension between Defendant and first counsel, the trial court removed first counsel when

their relationship reached a breaking point.  In considering Defendant’s earlier request

for different counsel, the court specifically stated, “I can’t find that there’s a reason to

remove [first counsel] and replace him with somebody else.”  But later, the court

immediately stopped the proceedings when the relationship between Defendant and

first counsel became irreparably damaged.

¶31 Defendant also claims that first counsel was deficient for “continuously

undermining [his] credibility.”  It is important to note that this was a bench trial rather

than a jury trial.  Utah appellate courts presume that when conducting a bench trial, the

trial court “considers only admissible evidence and disregards any inadmissible

evidence.”  State v. Adams, 2011 UT App 163, ¶ 12, 257 P.3d 470.  “And even if . . .

counsel made improper comments . . . , when the trial is to the bench we assume the

trial court disregards any improper statements.”  Pitt v. Taron, 2009 UT App 113, ¶ 4,

210 P.3d 962.  See also In re Estate of Baxter, 399 P.2d 442, 445 (Utah 1965) (“[W]hen the

trial is to the court, his rulings on evidence need not be subjected to quite such critical

scrutiny as when it is to the jury, because in arriving at his conclusions upon the issues

he will include in his consideration of them his knowledge and his judgment as to the

competency, materiality and effect of evidence.”).

¶32 There is nothing in the record to indicate that the court was anything less than

fair to Defendant.  Indeed, while Defendant’s requested relief on appeal is a retrial,

there is no suggestion that the case should be assigned to a different judge in the event

of remand.  Appellate counsel readily conceded at oral argument that he “saw no

indication of disrespect” toward Defendant from the trial court.  The court removed

first counsel as soon as his relationship with Defendant deteriorated to a degree that the

trial court found it was adversely impacting Defendant’s case.  The court even told
20100827‐CA 13

Defendant at that time that “[a]s long as you were following your attorney’s advice, I

thought it went extremely well for you” and that the court “[could not] find any fault in

what [first counsel]’s advised you insofar as what I witnessed.  But then when I watch

your behavior, it seems like it’s all against your best interest.”

¶33 In its written ruling, the court never once alluded to first counsel’s comments.

Instead, the court stated that it convicted Defendant because it found the victim’s

testimony to be more credible than Defendant’s.  Defendant has not challenged the

sufficiency of the evidence on appeal, and we cannot conclude that Defendant was

prejudiced by his pugnacious interactions with first counsel on the first day of trial.

2.  Defendant Fails To Demonstrate That Second Counsel

Rendered Ineffective Assistance.

¶34 Defendant claims that second counsel was ineffective for not filing a motion for

mistrial based on the interactions between Defendant and first counsel on the first day

of trial.  This was no simple oversight on the part of second counsel.  Second counsel

informed the court of Defendant’s request but explained, “I have not done that . . .

because frankly, I could not in good faith find a basis that I would feel comfortable

signing pleadings under Rule 11[.]”  Thus, Defendant cannot persuade this court “that

there was no conceivable tactical basis for counsel’s actions,” State v. Clark, 2004 UT 25,

¶ 6, 89 P.3d 162 (emphasis, citation, and internal quotation marks omitted), when

second counsel specifically informed the court that he had weighed the merits of

Defendant’s requested motion and found that there was no basis for it.  Cf. State v.

Pedersen, 2010 UT App 38, ¶ 19, 227 P.3d 1264 (determining that “[d]efense counsel was

. . . not ineffective in failing to move for a mistrial” when the motion “likely would have

been futile”).

¶35 Defendant’s argument that second counsel should have moved for a mistrial

based on Defendant’s own conduct in defending himself on the first day of trial

similarly fails.  Defendant’s waiver of his right to counsel was knowing and voluntary,

see supra ¶¶ 19–23, and “a defendant who elects to represent himself cannot thereafter

complain that the quality of his own defense amounted to a denial of effective

assistance of counsel.”  Faretta v. California, 422 U.S. 806, 835 n.46 (1975) (internal

quotation marks omitted).  Therefore, Defendant is unable to demonstrate that second

counsel was deficient for choosing not to file a motion for mistrial on the morning of the

second day of trial.
20100827‐CA 14

CONCLUSION

¶36 Defendant’s waiver of the right to counsel was knowing and voluntary.  The

court removed first counsel as soon as the relationship between Defendant and first

counsel became totally unproductive.  Defendant was not prejudiced by the admittedly

unseemly interactions between Defendant and first counsel.  Second counsel was not

ineffective for deciding against moving for a mistrial.

¶37 Affirmed.

____________________________________

Gregory K. Orme, Judge

‐‐‐‐‐

¶38 WE CONCUR:

____________________________________

Stephen L. Roth, Judge

____________________________________

Michele M. Christiansen, Judge