PEOPLE v. MOODY, 630 P.2d 74 (Colo. 1981)

The People of the State of Colorado v. Cecil Moody

No. 80SA168Supreme Court of Colorado.
Decided June 8, 1981. Rehearing denied June 29, 1981.

Appeal from the District Court of the City and County of Denver, Honorable Clifton A. Flowers, Judge.

Page 75

J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy, Mary J. Mullarkey, Solicitor General, Robert C. Lehnert, Assistant Attorney General, for plaintiff-appellee.

J. Gregory Walta, State Public Defender, Steven H. Denman, Deputy, Michael Heher, Deputy, for defendant-appellant.

En Banc.

CHIEF JUSTICE HODGES delivered the opinion of the Court.

[1] Defendant Cecil Moody appeals his conviction for aggravated robbery[1] and the sentence imposed by the trial court. We affirm.

[2] Defendant’s conviction stems from the armed robbery of Angelo’s Pizza Parlor in Denver. The evidence at trial indicated that at approximately 10:00 p.m. on January 5, 1975 defendant entered the pizza parlor carrying a sawed-off shotgun. He robbed the restaurant and all of its patrons. Throughout the robbery the defendant brandished the shotgun in a threatening manner.

[3] Following a jury trial, defendant was found guilty of aggravated robbery and the trial court sentenced him to a term of 20 to 35 years imprisonment.

[4] I.

[5] Initially, defendant asserts that his conviction is invalid because the trial court, on its own motion, failed to hold a preliminary hearing after the defendant was found to be competent to stand trial. The argument is without merit.

[6] Following defendant’s arrest, a preliminary hearing was conducted on January 7, 1976 and probable cause was found to bind defendant over for trial. On January 20, 1976, defendant entered a plea of not guilty, and on February 17, 1976, defendant changed his plea to not guilty by reason of insanity. On August 4, 1976, the trial court found that the defendant was incompetent to stand trial, and he was committed to the state hospital for treatment.

Page 76

[7] Following a hearing on January 14, 1977, the trial court determined that the defendant had been restored to competency. No additional preliminary hearing was requested or conducted after the defendant was adjudged competent. In June 1977, defendant was found to have been sane at the time of the alleged offense, and the jury trial finally commenced on September 6, 1977.

[8] Defendant argues that under this court’s decision in Schwader v. District Court, 172 Colo. 474, 474 P.2d 607 (1970), the trial court erred in not sua sponte ordering a second preliminary hearing after defendant was determined to be competent. Specifically, defendant points to the following language in Schwader:

[9] “[B]ecause of the nature of a preliminary hearing, the right to counsel at a preliminary hearing reaches constitutional proportions. [Citations omitted.] But the right to counsel is a meaningless right unless the accused has the capacity to confer with counsel regarding the accusation, the nature of the proceedings, and the testimony of the witnesses . . . . [W]hen the preliminary hearing is held first and the sanity hearing second, if the outcome of the sanity hearing is that the defendant is presently insane, then upon his return to sanity another preliminary hearing must be held.”

[10] Defendant’s reliance on the Schwader case is misplaced. In Schwader, the district attorney requested a preliminary hearing, but before it could be conducted, the issue of the defendant’s competency was raised. In that factual context, this court ruled that under the then existing statutory scheme, the competency determination had to be made before the preliminary hearing was conducted.

[11] In the instant case, we note that the issue of defendant’s competency was not raised until forty days after the preliminary hearing was conducted. In addition, the statutory scheme has been changed since th Schwader decision to provide for either a grand jury indictment or a preliminary hearing prior to trial on the insanity issue.[2]

[12] There is no federal constitutional requirement for a preliminary hearing in every criminal case brought by information. People ex rel. Farina v. District Court, 185 Colo. 118, 522 P.2d 589 (1974) (hereinafte Farina I); Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969); See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975).[3]
However, section 16-5-301, C.R.S. 1973 (1978 Repl. Vol. 8), statutorily confers the right to demand and receive a preliminary hearing upon “[e]very person accused of a felony . . . by direct information, complaint, or felony complaint . . .”

[13] The statutory right to receive a preliminary hearing is not absolute, and requires that either the defendant or his attorney, or the prosecuting attorney, file a written motion demanding the preliminary hearing. If the defendant fails to file a written motion for a preliminary hearing, he is deemed to have waived his right to demand one.

Page 77

Farina I, supra; People ex rel. Farina v. District Court, 184 Colo. 406, 521 P.2d 778
(1974) (hereinafter Farina II); Crim. P. 5(a)(5).

[14] The defendant was represented by court-appointed counsel when the trial court determined that he had regained competency.[4] Defendant concedes that no motion for a preliminary hearing was made. Consequently, we must conclude that by his silence defendant waived any right he may have had to a preliminary hearing following his return to competency. See Farina I, supra; Farina II, supra; Crim. P. 5(a)(5).

[15] Defendant next asserts that trial counsel’s failure to include in his motion for new trial the issue of the trial court’s failure to conduct a preliminary hearing after defendant’s return to competency constituted a denial of defendant’s constitutional right to effective assistance of counsel. We do not agree.

[16] Defense counsel did not request a preliminary hearing following defendant’s return to competency, nor did he mention the failure of the trial court to conduct such a preliminary hearing in his motion for new trial. In our view, the decision not to seek a second preliminary hearing could have been a matter of trial strategy. “Mere disagreement as to trial strategy does not equate with ineffective assistance of counsel.” People v. McCormick, 181 Colo. 162, 508 P.2d 1270 (1973); see Morse v. People, 180 Colo. 49, 501 P.2d 1328 (1972).

[17] Defendant’s argument that his trial counsel lacked authority to waive defendant’s right to a preliminary hearing is also without merit. I Steward v. People, 179 Colo. 31, 498 P.2d 933 (1972), we reviewed the A.B.A. Standards for Criminal Justice and stated:

[18] “Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately for defense counsel. The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter; (ii) whether to waive jury trial; (iii) whether to testify in his own behalf.

[19] The decisions on . . . what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.”

[20] Even if it was oversight on the part of defendant’s trial counsel to fail to raise the issue of the second preliminary hearing, we cannot say in this case that the oversight alone constituted ineffective assistance of counsel. Justice does not require errorless representation. People v. White, 182 Colo. 417, 514 P.2d 69 (1973). A review of the whole course of the proceedings and attending circumstances convinces us that there was no denial of fundamental fairness. See Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962); People v. White, supra.

II.
[21] Defendant next argues that his conviction must be reversed because the trial court improperly denied him his constitutional right to represent himself. In our view, the trial court’s denial of defendant’s motion to proceed pro se was not error.

[22] Under the provisions of the Colorado Constitution, a criminal defendant is constitutionally entitled to defend himself, Colo. Const. Art. II, Sec. 16, provided he “has an intelligent understanding of the consequences of so doing.” (Emphasis in the original.) Reliford v. People, 195 Colo. 549, 579 P.2d 1145 (1978), cert. denied, 439 U.S. 1076, 99 S.Ct. 851, 59 L.Ed.2d 43 (1979); Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970).[5] However, under the peculiar facts of this case, the trial court properly acted within its discretion in denying defendant’s motion to proceed pro se.

Page 78

[23] Trial of defendant’s case began on September 6, 1977 with the selection of a jury. Shortly after the defendant was taken into the courtroom where the jury panel was awaiting voir dire, defense counsel requested a meeting in chambers. At that meeting, defendant challenged the composition of the jury panel.[6] Specifically, the defendant asserted that his right to a jury of his peers was being denied because only one of the forty veniremen was black.[7] The trial court denied defendant’s motion challenging the composition of the jury because defendant had presented no evidence in support of his challenge and because the challenge did not comply with the provisions of section 14-71-113, C.R.S. 1973.[8]

[24] Following the trial court’s denial of defendant’s challenge to the composition of the jury, defendant stated that he would not participate in the trial if the jury panel was not reconstituted, and that he would disrupt the proceedings if they were conducted in his presence. He asked that he be allowed to remain in the holding cell during the course of the trial.[9] The trial judge advised the defendant of his right to be present in a number of instances during the trial, and encouraged him to do so. Because of the defendant’s continuing threats

Page 79

to disrupt the proceeding, the trial judge ordered that the defendant be taken to the holding cell.[10]

[25] The defendant subsequently filed a written pro se motion captioned “Motion for Reconsideration of Defendant’s Motion for Mistrial.” That motion again challenged the composition of the jury panel and requested that the trial judge order a mistrial. The trial court denied defendant’s motion on September 7, 1977.

[26] It was at this point in the proceedings that defense counsel, on behalf of the defendant, filed defendant’s motion seeking leave to procee pro se. The motion stated in relevant part:

[27] “The Court has determined to proceed without this Defendant and this Defendant has no choice but to abide by the Court’s ruling as he has determined not to be present unless at least six black juror panel members be added to the current panel of thirty-nine white juror panel members.

[28] “That appointed counsel . . . cannot possibly adequately represent this Defendant without the Defendant’s presence at trial.

[29] WHEREFORE, it is the desire of this Defendant to proceed pro se and that the current trial be declared a mistrial and another trial date be selected wherein this Defendant can represent himself.”

[30] It is clear to us from the text of this motion and from the circumstances surrounding its filing that defendant’s desire to represent himself was contingent upon the granting of a motion for mistrial and the recomposition of the jury panel to include more black members.

[31] The constitutional guarantees of due process and trial by jury require that juries be selected from “a representative cross-section of the community.” See People v. Sepeda, 196 Colo. 13, 581 P.2d 723 (1978) and cases cited therein. However, there is no constitutional requirement “that each petit jury reflect the exact ethnic proportion of the population to which the defendant belongs.” Id.; see Bary v. United States, 248 F.2d 201
(10th Cir. 1957). Defendant’s assertions of unfair composition of the jury panel without some evidence of systematic exclusion, see United States v. Test, 550 F.2d 577 (10th Cir. 1976), did not require that the trial court grant the motion for mistrial. To justify the granting of a mistrial, the grounds must be “substantial and real.” Maes v. District Court, 180 Colo. 169, 503 P.2d 621 (1972). Here, the trial court exercised its sound discretion and denied defendant’s motion for mistrial. We will not disturb that judgment on review here, where there has been no showing of an abuse of the trial court’s discretion. See, e.g., People v. Saars, 196 Colo. 294, 584 P.2d 622 (1978); People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976); People v. Lowe, 184 Colo. 182, 519 P.2d 344 (1974) Brown v. People, 132 Colo. 561, 291 P.2d 680 (1955); Kelly v. People, 121 Colo. 243, 215 P.2d 336 (1950).

[32] Although a criminal defendant has a constitutional right to defend himself, Colo. Const. Art. II, Sec. 16; Reliford v. People, supra; Martinez v. People, supra; see Faretta v. California, supra, there was no violation of that right in this case where the defendant conditioned the exercise of that right upon the trial court’s grant of a motion for mistrial.[11] Compare Faretta v. California, supra.

III.
[33] Defendant maintains that his conviction is invalid because the trial

Page 80

court improperly required that he appear before the jury bound and gagged. Under the facts of this case, the trial court’s action in this regard was fully justified.

[34] As a part of its case against the defendant, the prosecution sought to have one of its witnesses make an in-court identification of the defendant as the man who robbed the pizza parlor.[12] The trial court ruled that the prosecution was entitled to present such evidence, and ordered that the defendant be brought into the courtroom for the identification.

[35] In preparation for the in-court identification, and outside of the presence of the jury, the trial judge questioned the defendant regarding how he would conduct himself in front of the jury. It was only after the defendant had reiterated his intentions to be disruptive in the presence of the jury that the trial judge ordered him to be brought into the courtroom bound and gagged.[13]

[36] Following the in-court identification, at which the prosecution witness identified the defendant as the man who robbed the restaurant, the defendant was returned to the holding cell. The trial judge instructed the jury that the fact the defendant appeared before them bound and gagged was not to have an influence on their verdict.

[37] Defendant now asserts that it was reversible error to require him to appear before the jury bound and gagged before he had actually been disruptive. This argument has no merit under the facts of this case. Where it is necessary to preserve security or order in the courtroom, the trial judge may order a defendant restrained. People v. Rogers, 187 Colo. 128, 528 P.2d 1309 (1974); see Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970); see also Lucero v. Lundquist, 196 Colo. 95, 580 P.2d 1245 (1978); Montoya v. People, 141 Colo. 9, 345 P.2d 1062 (1959) Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (1946). The defendant was fully informed that the trial court could not allow him to disrupt the trial. The trial judge on several occasions advised the defendant that if he persisted in his threats to disrupt the trial, he would have to be bound and gagged when brought before the jury for an in-court identification. The defendant nevertheless continued to threaten that he would be disruptive if not bound and gagged. In these circumstances, the trial judge acted properly in ordering that the defendant be bound and gagged while in the courtroom during the identification testimony. See Illinois v. Allen, supra; Lucero v. Lundquist, supra; People v. Rogers, supra; Montoya v. People, supra; Eaddy v. People, supra.

[38] In addition, it was not error for the trial court to order the defendant bound and gagged before he had actually disrupted

Page 81

the proceedings. Where, as here, the defendant continually threatens to be disruptive, the trial court is justified in restraining the defendant to prevent the threatened disruption.[14] See A.B.A. Standards for Criminal Justice, 15-3.1(c), commentary at 15.81 (2d Ed. 1980); see also People v. Shackelford, 182 Colo. 48, 511 P.2d 19 (1973).

[39] The defendant also argues that the trial court erred in requiring him to appear bound and gagged for the reading of the verdict. However, immediately before the jury was brought into the courtroom to deliver its verdict, the trial judge again questioned the defendant regarding his conduct. The defendant insisted that he would be disruptive if not restrained when the jury presented its verdict. Therefore, for the reasons stated above, it was not error for the trial court to order the defendant restrained to preserve the security and order of the courtroom.

IV.
[40] Defendant asserts that a sentence of 20 to 35 years imprisonment for aggravated robbery is unduly harsh.

[41] In reviewing this sentence for excessiveness, we must consider the nature of the defendant’s offense, the character of the defendant, and the public interest in safety and deterrence. E.g., People v. Trujillo, 627 P.2d 737 (Colo. 1981); People v. Cohen, 617 P.2d 1205
(Colo. 1980); People v. Warren, 200 Colo. 110, 612 P.2d 1124 (1980); Triggs v. People, 197 Colo. 229, 591 P.2d 1024 (1979); People v. Duran, 188 Colo. 207, 533 P.2d 1116 (1975). Applying those considerations to this case, we believe that the sentence imposed was appropriate. The crime was committed with the use of a particularly dangerous weapon, a sawed-off shotgun. The defendant has three prior felony convictions, several misdemeanor convictions, and a juvenile record. At the time sentence was imposed, the defendant was thirty-one years of age. In this case, there is no sound basis for saying that the trial court abused its discretion. See People v. Cohen, supra; People v. Warren, supra; Triggs v. People, supra; People v. Duran, supra.

[42] The defendant also argues that he is entitled to be resentenced under the presumptive sentencing provisions of either the 1977 version of House Bill 1589, Colo. Sess. Laws 1977, ch. 216, 18-1-105 at 867, or the 1979 version of House Bill 1589 (codified in section 18-1-105, C.R.S. 1973 (1980 Cum. Supp. to 1978 Repl. Vol. 8)). The arguments advanced by the defendant have been resolved adversely to him in People v. McKenna, 199 Colo. 452, 611 P.2d 574 (1980), and we continue to adhere to that decision. See, e.g., People v. Trujillo, supra, and cases cited therein.

[43] Judgment affirmed.

Page 82