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State v. Montes

Court of Appeals of Utah

May 2, 2019

State of Utah, Appellee,
Christopher Montes, Appellant.

          Seventh District Court, Moab Department The Honorable Lyle R. Anderson No. 161700140

          Happy J. Morgan, Attorney for Appellant

          Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee

          Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Ryan M. Harris concurred.


          MORTENSEN, Judge.

         ¶1 Christopher Montes had already been held in contempt of court three times when he asked his appointed counsel, "[D]o I need to head-butt you so that the judge will give me a new lawyer?" Based on this statement and other actions of Montes, the trial court ruled that Montes had impliedly waived or forfeited his right to counsel and would be required to represent himself. Montes soon repented, and his lawyer represented him for the rest of the trial, but not before opening statements and two significant witnesses had testified. Now convicted, Montes appeals. Because we conclude that the trial court erroneously determined that the right to counsel had been waived or forfeited, and because we conclude that the error constituted structural error, we must reverse Montes's criminal convictions, except for those associated with contempt, and remand for a new trial. We affirm, however, Montes's contempt convictions.


         Theft of the Bikes

         ¶2 On a busy morning in October 2016, employees of a bike shop in Moab were outfitting customers who had rented mountain bikes. One employee (Clerk) saw a man-later identified as Montes-removing a bike from an outside display rack and jamming it haphazardly onto a bike rack on the back of a car. Alarmed because the bikes on the display rack were secured with a cable that only an employee could unlock, Clerk ran out the front door of the shop to investigate. By the time Clerk reached the car, Montes was putting a second bike on the car rack.[2] Another employee (Mechanic) positioned himself in front of the car, placed his hands on the hood, and yelled for Montes to stop. Meanwhile, Clerk successfully removed the bikes from the car and then reached inside the car in an attempt to prevent Montes from driving away. Montes ignored the commands to stop and began to pull away. Clerk ran alongside the car as he continued to struggle with Montes through the open driver's door, but he soon jumped free. Mechanic, to avoid being run over, ran up the car's hood, onto the roof, and then jumped off. After the unsuccessful attempt to detain Montes, the employees returned to the bike shop.

         ¶3 A Utah Highway Patrol trooper (Trooper), after hearing a radio broadcast from the Grand County Sheriff's Office requesting help in locating Montes's car, pulled Montes over, who was leaving town at a speed of eighty-seven miles per hour. Trooper noticed that Montes dropped a small pill bottle on the car floor as Montes was retrieving his identification. The pill bottle contained marijuana, and Trooper placed Montes under arrest for possession of a controlled substance. A subsequent search of Montes's car also yielded a pipe similar to the kind used to ingest illegal drugs, a mirror with a white residue on it, a glass vial with a small spoon attached to it, and bolt cutters. A Moab City police deputy (Deputy) transported Montes back to the bike shop, where employees identified him as the individual who had stolen the bikes.

         Procedural History

         ¶4 The State charged Montes with theft, aggravated assault, unlawful use or possession of a controlled substance, possession of paraphernalia, and speeding. After finding Montes indigent, the court appointed counsel (Appointed Counsel) to represent him.

         a. Montes's Complaints at Pretrial Conference

         ¶5 At a pretrial conference two days before trial, Montes asked the court to appoint new counsel and continue the trial. In addition to contending that his communication with Appointed Counsel was of a limited and argumentative nature, Montes voiced several specific complaints. First, believing that his trial should have taken place within thirty days of arraignment, Montes stated that Appointed Counsel failed to assert his Sixth Amendment right to a speedy trial. The trial court responded that there was no speedy trial issue because the trial was set to occur within three months of arraignment. Second, Montes complained that Appointed Counsel talked him into waiving his preliminary hearing. But Montes was unable to articulate how he was harmed other than he would "like to have [a preliminary hearing]," and the court rejected the claim. Third, Montes explained that Appointed Counsel did not file paperwork to request that Montes be released from jail to visit a sick family member. The trial court told him that was not part of a public defender's representation. Fourth, Montes complained that Appointed Counsel would not test the bolt cutters and would not ensure that the two bikes, cable, and bolt cutters were admitted into evidence.[3] The court noted that Appointed Counsel had tested the bolt cutters and that pictures of the bikes would be presented as evidence. Finally, Montes revealed that he had filed a complaint in federal district court against Appointed Counsel, apparently because Appointed Counsel had refused to follow his specific directives.

         ¶6 In rejecting Montes's reasons for releasing Appointed Counsel, the trial court observed that the timing of Montes's complaints suggested that "Montes [was] trying to . . . postpone his trial and create confusion in the system rather than actually improving his chances of prevailing at trial." The court further told Montes:

You have the right to be consulted, and you have the right to decide important critical questions that take place during the course of the trial, but you do not have the right to make every decision for the . . . defense attorney. That is not something you have the right to do. It would be impossible to have a trial where we had the public defender-or any defender for that matter-as puppet and the accused as puppeteer. That simply will not work. And courts have consistently held that is not the obligation of the defender. The defender is entitled to use the defender's judgment in representing the accused.

         Montes nevertheless asked for a continuance to seek new counsel. The trial court denied the continuance but stated it would release Appointed Counsel if Montes obtained new counsel by the time of trial. But the court warned Montes that if he did not find new counsel, he would have to proceed with trial as scheduled with Appointed Counsel or represent himself. When Montes responded that he would need a continuance if he represented himself, the court told him, "That will not be [an] option," observing that Montes would not have the luxury of saying he wants to represent himself and then insisting on a delay.

         b. Events on the Day of Trial

         ¶7 It appears that Montes took the court's admonition about delaying the trial to heart, but in the opposite way as it was intended. As Montes left the jail on the morning of the trial, one of the deputies wished him good luck. Montes responded that he did not need good luck because he was going to fire Appointed Counsel and "spend more of Grand County's money."

         ¶8 Montes appeared at trial without new counsel and insisted that he "[a]bsolutely" refused to proceed with Appointed Counsel. The judge asked Montes, "So do you want me to excuse [Appointed Counsel]?" Montes responded, "If you like." The judge answered, "No, I don't like. I want [Appointed Counsel] to represent you, and . . . you would be a fool not to have him as your representative." After Montes reiterated that he did not want Appointed Counsel to represent him, the court conducted a colloquy to confirm that Montes understood the risk of pro se representation. The court told him that he had only two options-represent himself or accept Appointed Counsel's representation. Montes said he wanted neither, and the court stated that Appointed Counsel would represent Montes. Montes continued to protest, saying that it would create a conflict of interest since he had filed a complaint against Appointed Counsel.

         ¶9 Montes then proceeded to rehash his already rejected complaints against Appointed Counsel. The court admonished Montes to stop arguing and interrupting, reiterating that Montes's only two options were to have Appointed Counsel represent him or to represent himself. The judge warned Montes, "If you do not choose one of those [options], I will choose for you. I'm going to give you to the count of ten to decide one of those two options. If you don't decide one of those two options by the time I've counted to ten, [Appointed Counsel] will represent you." The court commenced counting, and at the count of seven, Montes told the court that he did not want Appointed Counsel to represent him but that he did not want to represent himself. The court followed through on its warning and directed Appointed Counsel to represent Montes.

         ¶10 Yet Montes persisted. He continued to interrupt the court, even after seven warnings to remain silent. The court held him in contempt and sentenced him to thirty days in jail. The court issued another warning that if Montes continued to speak without invitation or permission, it would sentence him to another thirty days in jail. It further explained that Montes would serve that time even if he was acquitted. Montes immediately interrupted, and the court again held him in contempt, sentenced him to another thirty days, and told him he must ask for permission to speak. Montes asked for permission to speak, and the court told him he may on the condition that he give a "different answer to [the] question" of whether he wanted Appointed Counsel to represent him or to represent himself. Montes revisited the already decided complaints against Appointed Counsel. The court responded by saying, "We've talked about that long enough. . . . We will not speak about that," and directed that the prospective jurors be brought into the courtroom for jury selection. Montes interrupted yet again, saying he did not wish to proceed with Appointed Counsel, and the court held him in contempt a third time and imposed another thirty-day sentence. Undaunted, Montes continued to speak and interrupt the court until prospective jurors were escorted into the courtroom.

         ¶11 During a short recess after the jury was selected, but outside the jury's presence, Appointed Counsel informed the court that Montes decided to represent himself and was asking for a continuance to prepare. The court denied the continuance and told Montes his "options are to proceed now representing [himself] or to proceed now with [Appointed Counsel]." Appointed Counsel then revealed that Montes had just threatened to harm him by stating:

[D]o I need to head-butt you so the judge will give me a new lawyer? I'm willing to do that. That's what happens in California when you need a new lawyer, is you harm the attorney, and I'm willing to do that. Let's do that now. There are all these officers around me to witness that happening.

         Montes admitted saying "something in that fashion, but not like that." Montes explained that his putative threat was not to be taken literally as it was borne out of frustration:

I said that . . . I didn't want him to represent me. What did I need to do? Did I need to threaten him or head-butt him or something like that? . . . He's saying that I told him that I'm going to do that, and I did not say that. All I said is that I didn't want him representing me . . . . What is it that one has to go through so that I cannot have [Appointed Counsel] as my counsel? . . . I did not threaten to do it. I asked him, what is it that I have to do? . . . I apologize. I feel strongly, Your Honor, that he's not helping me.

         ¶12 A lengthy discussion ensued about the appropriate response to the head-butt threat. The court sought assurance that there was "no chance" that Montes would attempt to hurt Appointed Counsel, but Montes asked for more time to find a different attorney and proceeded to rehash Appointed Counsel's perceived deficiencies. The prosecutor argued that Montes "indicat[ed] that he wants to represent himself by making a physical threat to [his] attorney," but he also suggested that Montes might merely be "posturing" in making the threat. The court raised the possibility of restraining Montes. Montes said that there was no need for restraints and that he was "not adequately fit" to ...

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