State v. Graham

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellee, ) Case No. 20100827‐CA
)
v. ) FILED
) (November 29, 2012)
Jerry L. Graham, )
) 2012 UT App 332
Defendant and Appellant. )

‐‐‐‐‐

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.
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.”

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
¶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.”

20100827‐CA 3
¶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.”

2
Defendant and first counsel conferred at least twenty times during cross‐
examination of the victim.

20100827‐CA 4
¶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 5
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

20100827‐CA 6
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,

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
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

20100827‐CA 8
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.

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
¶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 10
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 11
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 12
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 13
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

20100827‐CA 14