State v. Gray

IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 51254

STATE OF IDAHO, )
) Filed: August 29, 2025
Plaintiff-Respondent, )
) Melanie Gagnepain, Clerk
v. )
) THIS IS AN UNPUBLISHED
GENE L. GRAY, ) OPINION AND SHALL NOT
) BE CITED AS AUTHORITY
Defendant-Appellant. )
)

Appeal from the District Court of the Seventh Judicial District, State of Idaho,
Bingham County. Hon. Darren B. Simpson, District Judge.

Judgment of conviction, affirmed; order denying motion to substitute counsel,
affirmed.

Erik R. Lehtinen, State Appellate Public Defender; Brian R. Dickson, Deputy
Appellate Public Defender, Boise, for appellant.

Hon. Raúl R. Labrador, Attorney General; Mark W. Olson, Deputy Attorney
General, Boise, for respondent.
________________________________________________

HUSKEY, Judge
Gene L. Gray appeals from the judgment of conviction entered in his case, arguing the
district court abused its discretion in denying his motion to substitute counsel. The State argues
there was no error. Gray’s judgment of conviction and the district court’s order denying Gray’s
request for new counsel are affirmed.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Law enforcement executed a search warrant on Gray’s home. Based on what was found
during the search, Gray was charged with possession of a controlled substance with the intent to
deliver, Idaho Code § 37-2732(a)(1), misdemeanor possession of a controlled substance, I.C. § 37-
2732(c)(3), and possession of drug paraphernalia, I.C. § 37-2734A(1). Approximately one week
before trial, defense counsel filed a witness list; potential witnesses listed were Gray and, “Any

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witnesses disclosed in State’s Discovery Responses.” In response, the State filed two motions in
limine. The first motion sought to exclude the presentation of any evidence regarding the
confidential informant and the controlled drug buys upon which, in part, the search warrant was
based. The second motion in limine sought to limit the defense to calling only Gray or witnesses
called by the State on the basis that Gray’s witness list was too vague to provide sufficient notice
to the State as to which witnesses the defense intended to call.
The morning of trial, a hearing was held on the motions. It became clear at the hearing that
Gray wanted to call the confidential informant, which the State opposed. The district court ruled
that any testimony from the confidential informant was only relevant to challenging the basis for
the search warrant, which Gray had not done. Consequently, the district court granted the State’s
first motion in limine. As to the second motion in limine, Gray argued he could not have provided
a more specific name for the confidential informant on his witness list because the State had not
disclosed the name. The district court ruled that the confidential informant had no relevant
testimony because the evidence was discovered during the execution of a search warrant, not as a
result of the prior controlled drug buys involving the confidential informant. The district court
held that the defense could not call the confidential informant and, additionally, that neither party
could call witnesses that had not been disclosed.
Gray then told the district court he wanted new counsel. Gray explained that he felt it was
unfair that the search warrant had been issued and that the district court had held that it was too
late to challenge the issuance of the warrant. The district court ruled that the time for challenging
the search warrant had passed and even if Gray had new counsel, the rulings were unlikely to
change. Gray expressed frustration that he would likely get convicted if he could not challenge
the search warrant and the district court instructed Gray to discuss that matter with defense counsel.
Gray said he wanted new counsel, and when the district court said Gray could go forward with his
current counsel or represent himself, Gray proceeded to trial with defense counsel. The jury found
Gray guilty of all charges. Gray appeals.
II.
STANDARD OF REVIEW
The decision of whether to appoint substitute counsel lies within the discretion of the trial
court and will only be reviewed for an abuse of discretion. State v. Lippert, 152 Idaho 884, 887,
276 P.3d 756, 759 (Ct. App. 2012).

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When a trial court’s discretionary decision is reviewed on appeal, the appellate court
conducts a multi-tiered inquiry to determine whether the lower court: (1) correctly perceived the
issue as one of discretion; (2) acted within the boundaries of such discretion; (3) acted consistently
with any legal standards applicable to the specific choices before it; and (4) reached its decision
by an exercise of reason. State v. Herrera, 164 Idaho 261, 270, 429 P.3d 149, 158 (2018).
III.
ANALYSIS
Gray characterizes his motion to substitute counsel as a motion to continue the trial and
based on that characterization, argues that the district court erred in failing to consider the factors
relevant to granting or denying a continuance. However, Gray’s argument rests on the erroneous
factual premise that Gray moved for a continuance. This erroneous factual premise occurs
throughout the appellant’s brief, beginning with the issue statement and the initial heading in the
argument section. It is phrased as, “The District Court Erred By Denying Mr. Gray’s Motion For
Continuance To Seek New Counsel . . . .” This implies that Gray moved for a continuance so that
he could obtain new counsel. No such motion was made. Then, the first sentence of Gray’s
standard of review reads, “When a defendant requests new counsel on the morning of trial, that is,
in effect, a request to continue the trial. See State v. DeWitt, 153 Idaho 658, 662, 289 P.3d 60, 64
(Ct. App. 2012).” DeWitt does not support the proposition Gray argues.
In DeWitt, on the morning of trial, DeWitt requested new counsel and specifically
identified his concern with defense counsel. Id. at 660, 289 P.3d at 62. Defense counsel then
stated, “I guess on his behalf, I really--I feel obligated to ask this Court to continue the trial at this
point and give him the opportunity to obtain alternate counsel that he feels comfortable with.” Id.
The district court denied the request and DeWitt appealed. On appeal, DeWitt argued that his right
to counsel under the Sixth Amendment to the United States Constitution was violated when the
district court denied his request to obtain alternate counsel without providing DeWitt a full and
fair opportunity to explain the conflict he had with counsel. DeWitt, 153 Idaho at 660, 289 P.3d
at 62. The State argued that, while DeWitt characterized his request made on the morning of trial
as one to substitute counsel, the request was really a motion for a continuance in order to obtain
alternate counsel. Id. at 662, 289 P.3d at 64. The State did so in an attempt to argue that because
DeWitt had not requested new counsel, the district court did not err when it did not provide DeWitt
the opportunity to show good cause, i.e., explain the conflict with his attorney. Id. Thus, the issue

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in DeWitt was not related to the motion to continue the trial, but instead, whether the district court
inquired and provided DeWitt a full and fair opportunity to show good cause to support his request
for alternate counsel. Id.
This Court noted:
Upon questioning by the district court, DeWitt’s counsel specifically requested a
continuance to provide DeWitt the opportunity to obtain alternate counsel. Because
DeWitt made his motion on the morning of trial, the practical effect of such motion,
if granted, whether titled a motion for substitute counsel or a motion for a
continuance, would have been a continuance of trial so DeWitt could obtain
alternate counsel. Thus, we agree with the state’s characterization of DeWitt’s
request as a motion for a continuance to obtain alternate counsel.
Id. We went on to analyze the issue and ultimately concluded that:
Even assuming that Cuyler [v. Sullivan, 446 U.S. 335 (1980)], [United
States v. ]Welty, [674 F.2d 185 (3d Cir. 1982], and [State v.] Lippert[, 145 Idaho
586, 181 P.3d 512 (Ct. App. 2007)] require that, where a defendant informs the
district court that he or she is dissatisfied with retained counsel’s representation on
the morning of trial, the district court must inquire and provide a full and fair
opportunity for the defendant to show good cause to support a request for alternate
counsel in order to justify a continuance, the record does not disclose that DeWitt
was deprived of such an opportunity in this case.
DeWitt, 153 Idaho at 663, 289 P.3d at 65.
Preliminarily, we note that a “see” cite is used “when the proposition is not directly stated
by the cited authority but obviously follows from it; there is an inferential step between the
authority cited and the proposition it supports.” THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION
R. 1.2(a), at 62 (Columbia L. Rev. Ass’n et al. eds., 21st ed. 2020). However, Gray’s
proposition--that when a defendant requests new counsel on the morning of trial, that is, in effect,
a request to continue the trial--does not obviously follow from the holding in DeWitt.
First, counsel’s summary of DeWitt omits an important fact--that DeWitt’s counsel
explicitly requested a continuance while Gray did not. Second, it omits several analytical steps in
the opinion, which are outlined above. DeWitt addresses the standard by which a trial court should
assess a request for new counsel. That standard requires that a defendant must inform the trial
court that he is dissatisfied with trial counsel’s representation. Once that occurs, the trial court
must inquire and provide a full and fair opportunity for the defendant to show good cause to
support a request for alternate counsel in order to justify a continuance. Because the issue in
DeWitt was whether the trial court properly analyzed DeWitt’s request for new counsel, DeWitt
does not state or infer that when a defendant requests new counsel on the morning of trial, that is,
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in effect, a request to continue the trial. While a motion to substitute counsel made on the morning
of trial may result in a continuance if granted, the motion for new trial does not necessarily require
the trial court to address the facts underlying a motion for continuance.
As discussed below, Gray expressed dissatisfaction with the district court’s evidentiary
rulings, which Gray appeared to blame on counsel. But even if we could imply Gray’s
dissatisfaction from the fact that he requested new counsel, in his opening brief on appeal he makes
no arguments regarding good cause to support his request. As a result, Gray waives any argument
that the district court erred in denying his motion to substitute counsel.1
Gray cites State v. Rockstahl, 159 Idaho 364, 369, 360 P.3d 373, 378 (Ct. App. 2015) for
the proposition that failing to analyze the factors related to the grant or denial of a motion to
continue is an abuse of discretion which should result in a remand in this case. Gray asserts this
lack of weighing of facts was the “very reason” this Court affirmed the district court’s reversal of
the magistrate court’s denial of Rockstahl’s motion for new counsel and motion for a continuance
because, “without analyzing the Carman[2] factors or addressing his court calendar, the magistrate
denied the motion to withdraw (and the inherent motion to continue and substitute the other
attorney).”
Gray’s argument omits a relevant fact: In Rockstahl, there was both a request for
substitution of counsel and a discussion about a continuance. On the record, the parties discussed
that Rockstahl would waive his speedy trial rights if the magistrate court would grant a continuance
for approximately two months. Rockstahl, 159 Idaho at 367, 360 P.3d at 376. The State objected
to any continuance, which the magistrate court ultimately agreed with. Id. Rockstahl appealed to
the district court and argued on appeal that his right to counsel of choice was denied. Id. The
district court ultimately determined that denial of the motion to withdraw, the denial of a
continuance, and the magistrate’s order that trial counsel and Rockstahl work together denied
Rockstahl his right to counsel of choice. Id. at 368, 360 P.3d at 377. The State appealed.
On appeal to this Court, the State focused specifically on the denial of the continuance by
the magistrate court, arguing that the district court did not apply the correct standard. Id. In the

1
As Gray had no basis for new counsel on the morning of trial, it seems apparent that
appellate counsel, aware of such, simply converts the issue to a continuance request. Gray’s
continuance argument is not an extension of the issue raised below, but is, instead, a new claim.
2
State v. Carman, 114 Idaho 791, 760 P.2d 1107 (Ct. App. 1988), aff’d, 116 Idaho 190, 774
P.2d 900 (1989).
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analysis, we noted that, “when a trial court considers a request that new counsel substitute in for
withdrawing counsel and a request that a continuance be allowed, the trial court should examine
the requests with the rights and interests of the defendant in mind, tempered by exigencies of
judicial economy.” Id. at 368, 360 P.3d at 377 (emphasis added) (internal quotation marks and
citation omitted). The Court went on to note:
This Court and the Idaho Supreme Court have thus recognized that “when a
defendant requests new counsel, several factors have been identified for use in
making the determination of whether his request for a continuance should be
granted.” State v. Pratt, 125 Idaho 546, 555, 873 P.2d 800, 809 (1993); Carman,
114 Idaho at 793, 760 P.2d at 1209.
Rockstahl, 159 Idaho at 369, 360 P.3d at 378. The Court further identified the relevant standard
of review related to both the motion to continue and the request for new counsel: “But the larger
issue of whether a defendant’s right to counsel of choice was denied (which encompasses the
motion for a continuance in this case) is a constitutional issue; thus, we exercise free review over
that issue.” Id. at 369, 360 P.3d at 378. In both Carman and Pratt, there was an explicit request
for a continuance.
The section Gray quotes appears in the next paragraph of Rockstahl and reads: “without
analyzing the Carman factors or addressing his court calendar, the magistrate denied the motion
to withdraw (and the inherent motion to continue and substitute the other attorney).” However,
there was nothing inherent about Rockstahl’s motion to continue; it was a separate request.
Because the two motions were necessarily related, this Court noted that the request for new counsel
included (or encompassed) the continuance. See Rockstahl, 159 Idaho at 369, 360 P.3d at 378.
In his reply brief, Gray argues he “is specifically challenging the district court’s decision
to deny his separate request for a continuance so he could obtain new counsel.” Notably, there is
no record citation for this statement. This Court’s review of the transcript finds no such separate
request or even the word “continuance.”
Gray continues in his reply brief:
Whether or not new counsel might subsequently attempt to file a motion to suppress
and provide evidence to establish good cause or excusable neglect to justify doing
so does not change the evaluation of Mr. Gray’s claim that his current attorney’s
failure to file a timely motion to suppress had irreparably damaged his relationship
with that attorney, and so, should be allowed a continuance to get a new attorney.

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Nowhere in the record does Gray say his attorney’s failure to file a motion to suppress irreparably
damaged his relationship with his attorney or that because of that irreparably damaged relationship,
the district court should grant a motion to continue so that Gray could obtain new counsel.
Apparently recognizing the above claim is unsupported in the record and that the State
pointed out in the respondent’s brief that Gray never claimed he had an irreconcilable difference
with his attorney, Gray attempts to ameliorate his stance with a footnote:
The State notes that Mr. Gray did not specifically assert that he had an
“irreconcilable” conflict with his current attorney. (Resp. Br., p. 11.) However,
there is no requirement that he use certain magic words in making that claim. Cf.
Jasso v. Camas County, 151 Idaho 790, 796, 264 P.3d 897, 903 (2011) (reaffirming
that reliance on magic words is not required; rather, all that is required for adequate
judicial review is that the record reflect the basis of the position taken below, in that
case of the factual basis for the decision-making body’s conclusions). That such a
conflict arose is clear from the context of Mr. Gray’s statements to the court.
Moreover, as discussed infra, it is perfectly permissible for him to groom his
argument in that regard on appeal.
Gray’s position is unsupported in the record. Nothing in the record supports the statement
that Gray had an irreconcilable conflict with his attorney. What the record shows is that Gray had
a disagreement with the district court’s evidentiary rulings:
GRAY: I would like to seek new counsel.
COURT: Okay. What’s the basis?
GRAY: The basis is the fact that everything that just went on here wasn’t by
any way--it’s like taking away my rights to appease yours.
COURT: Not appeasing my rights.
GRAY: Well, theirs. I mean you guys got me--can I speak frankly?
COURT: Yeah.
GRAY: I mean they come into my house, and they--and I start off with what,
ten charges? And they’re saying that there’s somebody that said I
sold them drugs and they have proof of this, and I know I didn’t.
They know I didn’t. I’ve got Detective Hay committing perjury on
the stand in the preliminary hearing. And all this, you’re saying that
we can’t bring up nothing to try and prove my innocence that they
should have never been in my house.
COURT: It should have been done under the rules.
GRAY: So I would like new counsel.
COURT: Well, it’s a little late for that because we’re ready to go for trial
today.
GRAY: So I have no rights in this matter?
COURT: You do have rights. I can’t appoint another attorney today. They
have to be ready to go.
GRAY: I’ll get my own.
COURT: They got to be ready to go in 15 minutes.
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GRAY: Your Honor, I really think this is totally unfair on the fact that you
can--basically what you’re saying is they can just walk up into
anybody’s house and get a possession charge?
....
GRAY: With the way this is sitting. There’s no way I can win this at all. I
mean what’s the point of having a jury trial if this is the case?
Because I can’t prove that I didn’t have possession. Intent to sell,
that’s garbage. I mean, I guess we could prove that, but what’s the
point of the trial if it’s already set to where I can’t win or even have
a chance at winning?
COURT: Well, that’s what you need to discuss with [defense counsel].
GRAY: And that is why I would like to seek new counsel.
Contrary to Gray’s statement that it is “clear” that Gray had an irreconcilable difference
with his attorney, the record does not disclose any difference, let alone an irreconcilable one.
Instead, it shows Gray aligned himself with his attorney (“And all this, you’re saying that we can’t
bring up nothing to try and prove my innocence . . . .”) (emphasis added), had a disagreement with
the district court’s evidentiary rulings, and was frustrated that his house had been searched
pursuant to a warrant.
Moreover, Gray does not explain why his statement regarding the irreconcilable conflict is
relevant to a request for a continuance. That fact would be relevant to a claim that the district court
abused its discretion in denying Gray’s request to substitute counsel, but that is not the argument
Gray is raising on appeal.
Finally, we address Gray’s assertion that it is “perfectly permissible for [Gray] to groom
his argument in that regard on appeal.” First, we find the grooming analogy to be overused and
frankly, a bit tired, but more importantly, it is completely inapplicable to this case. The motion
Gray made at trial was for new counsel, not a continuance. For the first time on appeal, Gray is
raising a claim that he requested, and was denied, a continuance. In his reply brief, for the first
time, he claims he had an irreconcilable difference with his attorney and that he requested a
continuance. Neither assertion is supported by the record. No amount of grooming or
misrepresentation can create arguments in the trial court where none existed.
That the granting of Gray’s request for new counsel may have resulted in a continuance
does not transform Gray’s request to change counsel into a motion for a continuance. Because
Gray did not move for a continuance, make any argument regarding a continuance, or receive an
adverse ruling on the non-existent motion, he has not preserved any argument on that issue for
appeal. State v. Miramontes, 170 Idaho 920, 924-25, 517 P.3d 849, 853-54 (2022). Consequently,

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Gray has waived any argument on this issue. Additionally, Gray does not provide any argument
or authority regarding the motion actually made at trial--the motion for new counsel. A party
waives an issue on appeal if either authority or argument is lacking. State v. Zichko, 129 Idaho
259, 263, 923 P.2d 966, 970 (1996).
But beyond that, Gray’s claim fails on the merits because a request for new counsel does
not necessarily include a request for a continuance; a distinction that is recognized by the different
factors and analysis relevant to each of the motions. For example, the request for new counsel
requires a showing of good cause. Upon finding good cause, a trial court may, in its discretion,
appoint a substitute attorney. State v. Clayton, 100 Idaho 896, 897, 606 P.2d 1000, 1001 (1980).
In determining whether there is good cause for the request, the trial court must conduct a
meaningful inquiry to determine whether a defendant possesses good cause for his or her request
to substitute counsel. Lippert, 145 Idaho at 596, 181 P.3d at 522. As noted by this Court:
Good cause includes an actual conflict of interest; a complete, irrevocable
breakdown of communication; or an irreconcilable conflict which leads to an
apparently unjust verdict. [Lippert, 145 Idaho at 596, 181 P.3d at 522]. Factors to
be used in examining constitutional implications of a total breakdown in
communication include: (1) whether the defendant’s motion for new counsel was
timely; (2) whether the trial court adequately inquired into defendant’s reasons for
making the motion; (3) whether the defendant-attorney conflict was so great that it
led to a total lack of communication precluding an adequate defense; and
(4) whether the defendant substantially and unreasonably contributed to the
communication breakdown. United States v. Lott, 310 F.3d 1231, 1250
(10th Cir. 2002); Lippert, 145 Idaho at 597, 181 P.3d at 523.
Lippert, 152 Idaho at 887, 276 P.3d at 759. In contrast, different factors apply when a defendant
requests a continuance in order to obtain new counsel, such as
the timing of the motion; the requested length of delay, including whether the delay
is an attempt to manipulate the proceedings; the number, if any, of similar
continuances sought by the defendant; inconvenience to witnesses; any prejudice
to the prosecution; whether an irreconcilable conflict exists between the accused
and counsel; and the qualifications possessed by present counsel.
State v. Carman, 114 Idaho 791, 793, 760 P.2d 1207, 1209 (Ct. App. 1988), aff’d, 116 Idaho 190,
774 P.2d 900 (1989).
In the opening brief, Gray conflates the standards for analyzing a motion for continuance
and a motion to appoint new counsel when arguing the district court “did not, for example, inquire
into whether a delay would prejudice the prosecution, or whether an irreconcilable difference had
arisen between Mr. Gray and his attorney.” Whether there is delay relates to the grant or denial of

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a continuance; whether there are irreconcilable differences relates to the grant or denial of a request
to substitute counsel.
And, even if we were to consider the motion for new counsel made just before trial, Gray
fails to provide the standard most applicable to the facts of this case. As this Court stated in DeWitt:
If a defendant seeks to obtain new private counsel just before trial, the district court
must decide if the reasons for the defendant’s request, effectively a request for
substitute counsel, constitute good cause and are sufficiently substantial to justify
a continuance of the trial in order to allow new counsel to be obtained. See United
States v. Welty, 674 F.2d 185, 190 (3d Cir. 1982).
DeWitt, 153 Idaho at 662, 289 P.3d at 64.
First, Gray has cited no authority or made any argument that this Court should ignore the
above standard and, instead, focuses solely on the analysis of the (according to Gray) “inherent”
motion to continue. We decline the invitation to ignore the motion made in the trial court and
consider a motion not made or referenced in the trial court. Second, Gray makes no argument
supported by authority that Gray demonstrated good cause for his request for new counsel and that
the cause was sufficiently substantial to justify a continuance. Similarly, Gray makes no claim
that the district court did not conduct a meaningful inquiry to determine whether Gray
demonstrated good cause for his request. As discussed above, Gray did not state there were
irreconcilable differences. What Gray was unhappy about was the district court’s evidentiary
rulings which, as noted by the district court, would not change even if Gray obtained new counsel.
Absent any showing of good cause, the district court did not err in denying Gray’s request for new
counsel.
IV.
CONCLUSION
Gray did not make a motion for continuance in the district court and did not make any
argument related to a motion to continue in the district court. As a result, Gray has not preserved
a claim that the district court erred in failing to adequately consider his request for a continuance.
Gray has similarly waived any claim that the district court erred in denying his request to substitute
counsel because he failed to make any argument or provide authority for any such argument. The
district court did not err in denying Gray’s motion to substitute counsel. The judgment of
conviction and the order denying Gray’s motion to substitute counsel are affirmed.
Chief Judge GRATTON and Judge LORELLO, CONCUR.

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