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State v. Spencer

March 31, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
DARRELL DEAN SPENCER, APPELLANT.



Appeal from Superior Court of King County. Docket No: 94-2-06805-9. Date filed: 08/31/94. Judge signing: Hon. Stephen G. Scott.

Authored by Ronald E. Cox. Concurring: Walter E. Webster, H. Joseph Coleman.

The opinion of the court was delivered by: Cox

COX, J. -- Darrell Spencer appeals his conviction for delivery of cocaine within 1,000 feet of a middle school. He challenges the trial court's denial of his motions to substitute private cou nsel for his appointed counsel and for a continuance to allow his newly-retained private counsel to prepare for trial. He also argues that the trial court abused its discretion by excluding evidence that another suspect was holding "bunk" cocaine for him. Because the trial court did not abuse its discretion either by denying Spencer's motions or by excluding the evidence, we affirm.

Spencer's first trial ended in a mistrial. Jim Koenig was Spencer's appointed counsel in that trial.

On Thursday, the first day of the new trial, Spencer asked that Koenig no longer represent him. He claimed that he was having difficulties communicating with Koenig. Specifically, Spencer claimed that Koenig would not take his calls and was rude to him. At the time of this request, Spencer had not retained substitute counsel to replace Koenig at trial.

The court examined Spencer's claims in detail and on the record. It also heard argument regarding cases on substitution under similar circumstances. The court then denied Spencer's request.

Spencer requested that the trial not continue that day. The court recessed the trial until the following Monday.

On Monday, attorney Michael Rosen appeared and requested a continuance so that Spencer's family could retain his law partner, Lee Covell, and so Covell could prepare for trial. The court denied the continuance, but agreed to hear the motion again the next day if Covell had been retained by that time. The court then attempted to proceed with trial, but Spencer became ill. The Judge recessed the trial until the following day.

Spencer's family retained Covell. He appeared in court on Tuesday morning. Covell requested that he be allowed to substitute for Koenig and that he be granted a two-week continuance to prepare for trial. The court denied the request. When the court attempted to proceed with jury selection, Spencer requested to go to the bathroom. Once there, he refused to return to court.

The following day, Koenig moved to withdraw from the case. In support of that motion, a friend of Spencer's family stated to the court that Spencer did not trust Koenig because he allegedly was too busy to deal with another matter for Spencer. The friend also explained a number of problems in Spencer's family that led to the delay in retaining Covell. The court denied this request for withdrawal.

Trial proceeded. During trial, Spencer made an offer of proof of a police report. The report stated that another suspect was holding bunk cocaine for Spencer. Spencer sought to introduce the report and the bunk cocaine to negate the knowledge element of intent to deliver cocaine. The court excluded the evidence on relevancy grounds.

The jury convicted Spencer as charged. He appeals.

I

Withdrawal and Substitution

Spencer's initial request was essentially a motion for withdrawal of appointed counsel. We review for an abuse of discretion a trial court's refusal to allow substitution of appointed counsel with whom a defendant is dissatisfied. *fn1

Because a defendant who is denied such a motion must choose between continuing with the appointed attorney or continuing pro se, the trial court should undertake a "penetrating and comprehensive examination" of the defendant's allegation. *fn2 Among the factors a court should consider are "'the reasons given for the defendant's dissatisfaction, together with [the trial court's] own evaluation of the competence of existing counsel and the effect of substitution upon the scheduled proceedings.'" *fn3 With respect to the reasons given for the defendant's dissatisfaction, this court has stated that "[a] trial-delaying substitution is ordinarily justifiable only when counsel has not prepared a ...


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