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IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 48034

STATE OF IDAHO,

Plaintiff-Respondent,

v.

DAMION TYWON DOSER,

Defendant-Appellant.

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Filed: July 22, 2021

Melanie Gagnepain, Clerk

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Jonathan Medema, District Judge. 

Judgment of conviction for possession of a controlled substance and possession of 

drug paraphernalia, affirmed. 

Eric D. Fredericksen, State Appellate Public Defender; Kimberly A. Coster, Deputy 

Appellate Public Defender, Boise, for appellant. 

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy 

Attorney General, Boise, for respondent. 

________________________________________________

LORELLO, Judge 

Damion Tywon Doser appeals from his judgment of conviction for possession of a 

controlled substance and possession of drug paraphernalia. We affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Doser with possession of a controlled substance (I.C. § 37-2732(c)), 

misdemeanor possession of a controlled substance (I.C. § 37-2732(c)), and possession of drug 

paraphernalia (I.C. § 37-2734A) after law enforcement discovered drugs and paraphernalia in 

Doser’s backpack. Prior to trial, the district court received a letter from Doser expressing his 

dissatisfaction with his appointed counsel and requesting substitute counsel. The court clerk 

forwarded the letter to counsel for both parties the same day the letter was received; no further 
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action was taken. Despite appearing with his allegedly dissatisfactory counsel at two subsequent

pretrial hearings and a jury trial, Doser neither mentioned the letter nor otherwise indicated to the 

district court that he was dissatisfied with his counsel. Ultimately, a jury found Doser guilty of 

felony possession of a controlled substance and possession of drug paraphernalia.

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 Doser appeals. 

II.

ANALYSIS

Doser argues that the district court erred by failing to hold a hearing in response to his letter 

to inquire into his dissatisfaction with counsel or Doser’s desire to represent himself. The State 

responds that Doser failed to preserve this issue and that, even if he did, the absence of a hearing 

was not error.2 We hold that Doser has failed to show error.

A. Error Preservation

As a threshold matter, we address the State’s preservation argument. Once aware that a 

defendant seeks substitute counsel, a trial court must give the defendant a full and fair opportunity

to support his or her motion with facts and argument. State v. Herrera, 164 Idaho 261, 270, 429 

P.3d 149, 158 (2018). According to the State, Doser’s argument that the district court erred by 

failing to hold a hearing in response to his letter is unpreserved because the record does not show

that he filed a “motion” requesting substitute counsel or otherwise notified the district court of 

such a request. Rather, Doser only sent a letter to the district court that, as set forth below, was 

neither a formal motion for substitute counsel nor a request for a hearing. 

 

1 Pursuant to the State’s motion, the district court dismissed the misdemeanor possession of 

a controlled substance charge prior to trial. 

2 The State also argues that Doser was not entitled to a hearing to waive his right to counsel 

because Doser did not unequivocally invoke that right. See State v. Meyers, 164 Idaho 620, 623, 

434 P.3d 224, 227 (2019) (observing an invocation of the right to self-representation must be 

unequivocal to trigger a trial court’s duty to warn of the dangers of self-representation and obtain 

a sufficient waiver of the right to counsel). However, Doser does not contend that he independently

invoked his right to self-representation. Rather, Doser contends that his request for substitute 

counsel entitles Doser to an opportunity to justify his request or exercise his right to represent 

himself upon remand. See State v. Bias, 157 Idaho 895, 898-99, 341 P.3d 1264, 1267-68 (Ct. App. 

2014) (remanding a case to provide the defendant an opportunity to justify a request for substitute 

counsel or exercise his right to self-representation). 
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Although framed as a preservation issue, the thrust of the State’s argument is that Doser 

has not shown that he triggered the district court’s obligation to afford him an opportunity to justify 

his substitution request--not that he failed to preserve an error in the district court’s fulfillment of 

that obligation. We need not resolve the issue of whether Doser’s letter triggered the district 

court’s duty to provide him an opportunity to support a request for substitute counsel if, assuming 

Doser did, he subsequently abandoned the request. Because the totality of the circumstances 

shows that Doser abandoned any request for substitute counsel, we will not address the State’s 

preservation arguments further. 

B. Duty to Inquire

Indigent defendants have a right to effective court-appointed counsel. State v. Clayton, 

100 Idaho 896, 897, 606 P.2d 1000, 1001 (1980). This right does not entitle defendants to 

appointed counsel of choice, but trial courts may appoint substitute counsel for good cause. Id. 

Trial courts must follow certain procedures when defendants seek substitute appointed counsel. 

State v. Bias, 157 Idaho 895, 897, 341 P.3d 1264, 1266 (Ct. App. 2014). As previously stated, 

trial courts must afford defendants a “full and fair opportunity” to support a motion for substitute 

counsel upon being made aware of the request. Herrera, 164 Idaho at 270, 429 P.3d at 158. The 

scope of a trial court’s duty to inquire into a substitution request depends on the nature of the 

alleged issues with counsel. See Bias, 157 Idaho at 898, 342 P.3d at 1267. Trial courts generally 

cannot prohibit defendants from discussing the facts and reasons supporting a substitution request,

and a limited inquiry may be appropriate even if a defendant only hints at dissatisfaction with 

counsel on a single occasion and does not request substitution. Id. When defendants set forth the 

nature of the issues with appointed counsel, trial courts must ensure that there is a sufficient basis 

for a decision. Id. 

Doser argues that his letter was a request for substitute counsel, necessitating inquiry by 

the district court into the basis for the request. Doser’s letter asserted that it was “essential” for 

him to be “reassigned a new public defender or reinstated [his] original public defender.”

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support this claim, Doser’s letter asserted that, after filing a complaint with the chief public 

 

3 Prior to being bound over for trial, Doser was represented by a different public defender 

than the one Doser indicated he was dissatisfied with in his letter to the district court. 
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defender to no effect, Doser “discussed his options” with his counsel and was told Doser could 

represent himself or hire an attorney. When Doser replied that “he would be representing himself,”

his counsel advised that the district court would first have to remove counsel from the case. 

Additionally, Doser’s letter recounts an apparently separate incident in which his counsel

“terminated” a telephone call after Doser directed counsel to file a motion to suppress because “the 

lady in the law library” had told Doser that he could not file motions while represented. Finally, 

Doser closed his letter by stating that he had “tried to work with” his counsel but “did not know 

what to do at this point.”

Although Doser’s letter expresses a desire for substitute counsel, the letter is not styled as 

a formal motion, and it bears no indication that Doser provided copies to his attorney or the 

prosecutor. Thus, the letter constitutes an attempt at ex parte communication with the district 

court--not a motion. See State v. Meyers, 164 Idaho 620, 623, 434 P.3d 224, 227 (2019). 

Generally, parties seeking an order in a criminal case must do so by motion. I.C.R. 47(a). The 

requirements of I.C.R. 47 give way, however, to a defendant’s right to self-representation. See 

Meyers, 164 Idaho at 623, 434 P.3d at 227. Idaho cases addressing a trial court’s obligation to 

inquire into requests for substitute counsel, however, have involved either formal motions or oral 

statements made in open court. See, e.g., State v. Nath, 137 Idaho 712, 714, 52 P.3d 857, 859 

(2002) (pro se written motion for substitution); State v. Lippert, 145 Idaho 586, 592, 181 P.3d 512, 

518 (Ct. App. 2007) (oral statements by the defendant expressing dissatisfaction with appointed 

counsel made in open court). Although neither party has cited an Idaho case in which a defendant 

sought substitution of counsel through an ex parte communication, defendants may invoke their

right to self-representation through an ex parte communication with the trial court, like a letter. 

See Meyers, 164 Idaho at 623, 434 P.3d at 227. Accordingly, we will assume without deciding 

that Doser’s letter was a valid request for substitute counsel.

According to a clerk’s notation on Doser’s letter, the district court forwarded copies of the 

letter to Doser’s counsel and the prosecutor the day it was received. The record does not indicate, 

however, that the district court took any further action on Doser’s letter. Doser contends that this 

inaction compels remand because the district court did not inquire into the allegations set forth in 

his letter, he was not afforded an opportunity to justify his substitution request, and he did not 

abandon his substitution request. Doser’s arguments are unavailing.
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Although Doser has not cited an Idaho case addressing whether a defendant can abandon 

a request for substitute counsel, the Idaho Supreme Court has held that defendants can abandon a 

prior invocation of the right to self-representation through subsequent conduct. See id. at 624, 434 

P.3d at 228. Invocation of the right to self-representation is, in essence, a request to substitute

counsel with oneself. If defendants can abandon such a request, they may also abandon a request 

to substitute one counsel for another. Accordingly, we hold that the abandonment analysis adopted 

in Meyers applies to requests for substitute counsel. 

To determine whether a defendant abandoned a request for self-representation, we consider 

the totality of the circumstances. Id. This test factors in both the opportunities the defendant had 

to remind the district court of a pending motion along with any other relevant factors. Id. Doser 

acknowledges the totality of the circumstances test adopted in Meyers, but contends the totality of 

the circumstances does not show that he abandoned his request for substitute counsel and that 

Meyers is distinguishable. We disagree and hold that the distinctions between this case and Meyers 

do not compel a different result. 

As stated above, Meyers established the test to determine whether a defendant has 

abandoned a prior request for self-representation. Id. After one abortive attempt to obtain 

substitute counsel and voicing Meyers’ frustration in open court regarding delays due to 

competency proceedings, he sent a letter to the trial court advising it of his decision to fire his 

appointed counsel and represent himself. However, the letter neither sought a hearing nor bore an 

indication that copies were sent to either Meyers’ counsel or the prosecutor. No further action was 

taken regarding Meyers’ letter, and he did not mention it again. After a bench trial in which a 

different public defender represented Meyers, the court found him guilty of grand theft. 

On appeal, Meyers argued that the district court ignored his request for self-representation 

in violation of the Sixth Amendment. Id. at 623, 434 P.3d at 227. The Idaho Supreme Court held 

that no Sixth Amendment violation occurred because the totality of the circumstances showed 

Meyers abandoned the request. Id. at 625, 434 P.3d at 229. In reaching this conclusion, the Court 

observed that, despite being a vocal participant in prior proceedings, Meyers had not mentioned or 

renewed his request to represent himself when the trial court asked, prior to trial, whether there 

were any matters to address. The Court further supported its conclusion by observing that the 

record did not indicate that the court or counsel was aware of Meyers’ letter; he appeared with new 
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counsel at trial; Meyers waited until after being found guilty to renew his request for 

self-representation; and his criminal history indicated “some familiarity with the criminal justice 

system.” Id. at 624-25, 434 P.3d at 228-29. 

Doser argues that Meyers is distinguishable because the record shows his letter was 

forwarded to counsel, but does not suggest that Doser’s complaints about counsel were resolved 

through an appearance with new counsel or that Doser’s silence regarding his letter was 

inconsistent with his prior in-court conduct. As further evidence he had not abandoned his 

substitution request, Doser also points to assertions in his letter that a prior complaint to the chief 

public defender had gone unanswered and that a law librarian had informed Doser that he could 

not file his own motions while represented. According to Doser, these circumstances do not show 

abandonment, but instead show that he believed the district court had “summarily and implicitly”

denied his request for substitute counsel. 

Doser’s arguments are unpersuasive for several reasons. First, the court clerk forwarded 

the letter to Doser’s counsel. Doser’s counsel did not mention the issue of substitution during two

subsequent pretrial hearings and Doser’s trial. The most reasonable inference arising from this

silence is that Doser’s counsel discussed the letter with Doser and resolved his complaints, making

further consideration of the letter unnecessary. 

Second, even if Doser’s counsel was somehow unaware of the letter, Doser did not mention 

his letter or the issue of substitution during the two pretrial hearings or trial, despite the district 

court inquiring whether any other matters needed to be addressed at the conclusion of the second

pretrial hearing. Although Doser did not have a history of vocal participation in the proceedings, 

his letter recounts his independent exploration of avenues to obtain substitute counsel--beginning 

with a letter to the chief public defender and concluding with Doser’s letter to the district court. 

That Doser did not raise the issue of substitution, or prompt his counsel to do so, when the district 

court inquired about pending issues prior to trial indicates that Doser no longer desired to substitute 

counsel. 

Third, prior to testifying during trial, Doser informed the district court that he had spoken 

with his counsel about waiving Doser’s right to remain silent, indicating that he was still 

communicating with his counsel. Also, Doser’s letter to the district court recounts how his counsel 

advised Doser that if he did not take a plea agreement that the State intended to file additional 
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charges in another case. This suggests that, even around the time Doser’s dissatisfaction with 

counsel was near its height, Doser’s counsel was still communicating with Doser and giving him

candid advice.

Fourth, Doser has a lengthy criminal history encompassing both felony and misdemeanor 

convictions. Although this does not demonstrate Doser’s experience with seeking substitute 

counsel, it does show that Doser has some experience with the judicial system and the manner in 

which trial courts adjudicate motions and other requests for relief. This weighs against Doser’s 

argument that he believed the district court “summarily and implicitly” denied his request for 

substitute counsel.

Finally, despite prior opportunities to remind the district court of his letter, Doser waited 

until this appeal to complain about the lack of response to his letter. This indicates that he is 

dissatisfied with the result of the proceedings--not his appointed counsel. 

Considering the totality of the circumstances, we hold that, even assuming Doser’s letter 

obligated the district court to provide him an opportunity to justify a request for substitute counsel, 

Doser abandoned that request through his subsequent conduct. Because Doser abandoned his 

substitution request, he has failed to show that the district court erred by not holding a hearing to 

inquire into the basis of his request. This conclusion renders consideration of the State’s other 

arguments in support of affirmance unnecessary. 

III.

CONCLUSION

The totality of the circumstances indicate that Doser abandoned his request for substitute 

counsel. Consequently, Doser has failed to show that the district court erred by failing to hold a 

hearing in response to that request. Accordingly, Doser’s judgment of conviction for possession 

of a controlled substance and possession of drug paraphernalia is affirmed.

Judge GRATTON and Judge BRAILSFORD, CONCUR.