Appeal from Superior Court of Clark County. Docket No: 93-1-00215-7. Date filed: 09/23/93. Judge signing: Hon. Thomas L. Lodge.
Petition for Review Denied June 3, 1997,
Authored by J. Dean Morgan. Concurring: Elaine M. Houghton, Carroll C. Bridgewater.
The opinion of the court was delivered by: Morgan
MORGAN, J. -- On the evening of February 27, 1993, Robert Michael Bandura, Shirley Ward, and Terry Knowles, Ward's boyfriend, were drinking heavily at Bandura's house. According to the State, Bandura hit Knowles without provocation. Ward stepped between them, and Bandura left the room.
Within a short time, Bandura returned with a machete. Ward intervened again, but moved aside after Bandura used the machete to inflict a small cut on her chest. Bandura then swung the machete at Knowles about ten times. Simultaneously, Bandura said he was going to kill Knowles. Knowles defended himself with a baseball bat, but nonetheless sustained a three to four inch gash on his head, several gashes on his left arm and hand, and the severance of his left little finger.
The State charged Bandura with first degree assault on Knowles (Count I) and second degree assault on Ward (Count II). On March 5, Bandura appeared for arraignment with attorney James W. Sowder. Bandura pled not guilty, and the court set trial for April 19.
On March 26, Bandura moved to substitute attorney Steven W. Thayer for attorney Sowder. He also moved to continue the trial. The court granted both motions and reset trial for June 21.
On April 23, Bandura notified the court that he had discharged attorney Thayer due to "a number of disagreements." *fn1 Bandura said he was "actively engaged in the process of locating and retaining other counsel and expected to make financial arrangements to do so in the near future." *fn2
The court allowed Thayer to withdraw and appointed attorney Barry W. Brandenburg.
On May 25, Bandura moved for a continuance and the appointment of an investigator. The court granted both motions and reset trial for July 21.
On July 16, Bandura retained attorney Michael Foister. Three days later, he moved to substitute Foister for Brandenburg, and to again continue the trial date. The court granted both motions and reset trial for August 23.
Trial began on August 23. At the end of the evidence, attorney Foister proposed lesser included offense instructions allowing the jury to find Bandura guilty of second, third, or fourth degree assault on Count I, and third or fourth degree assault on Count II. Although Bandura was present in court at the time, he said nothing; thus, he neither consented nor objected on the record. The trial court gave the proposed lesser included offense instructions, and the jury used those instructions to find Bandura guilty of second degree assault on Count I and fourth degree assault on Count II.
On September 21, Foister filed a written motion for arrest of judgment or in the alternative for new trial. The motion alleged in part:
Defendant wishes present defense counsel to raise and preserve the issue of adequacy of defense counsel in representing his interest during the trial herein. . . . Defendant wishes to assert that he expressly forbid that a request for lesser ...