Appeal from the District Court of Sheridan County The Honorable John G. Fenn, Judge
The opinion of the court was delivered by: Voigt, Justice.
Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] The appellant, Timothy Paul Schaeffer, was convicted of one count of aggravated assault and battery. In this appeal from that conviction, the appellant claims he was subjected to numerous errors which affected his right to a fair trial. Finding no error, we will affirm.
[¶2] 1. Whether the district court abused its discretion when it did not appoint substitute counsel.
2. Whether the district court denied the appellant his right to self-representation.
3 Whether the appellant was physically restrained excessively during the trial.
4. Whether plain error occurred when the trial court did not instruct the jury to disregard the fact that the appellant was physically restrained.
5. Whether the district court erred when it did not order a competency hearing during trial.
6. Whether the district court abused its discretion when it denied the appellant's motion for new trial as untimely.
7. Whether the district court engaged in judicial bias.
8. Whether there was sufficient evidence presented that the appellant's flare gun was a deadly weapon.
9. Whether plain error occurred when the State referred to allegedly incorrect and improper information at the sentencing hearing.
[¶3] The appellant was convicted of one count of aggravated assault and battery after he waved around a flare gun during an altercation at a bar. Due to the number of issues presented in this appeal, additional facts will be discussed when relevant.
Whether the district court abused its discretion when it did not appoint substitute counsel
[¶4] On the second day of trial, the trial court was given a letter written by the appellant in which he complained extensively about his counsel's performance on the first day of trial.*fn1 The letter aired general grievances about counsel's cross-examination of witnesses at trial, how often counsel visited the appellant, and that counsel failed adequately to consider the appellant's medical issues. Because counsel was unaware of the letter, the trial court recessed so that counsel could discuss the appellant's concerns with him in private. After the recess, counsel informed the court that the appellant wanted "to fire" current counsel, but did not wish to proceed pro se. The trial court then advised the appellant that he had the right to counsel, but that another attorney would not be appointed to represent him. The appellant informed the court that he wanted to hire his own attorney, but had not made any efforts to find one. The trial court stated: "I want to make sure I understand that it is your position that you do not want to go forward without an attorney this morning; correct?" To which the appellant replied, "[c]orrect."
[¶5] The appellant then began to explain that he did not have the mental capacity to represent himself, but then indicated that he "will go forward if [he has] to," and that he wanted to do it without the assistance of current counsel, as "he is obviously selling [him] out." The following exchange then occurred:
THE COURT: Is it your desire to waive your right to counsel and go forward pro se. [sic]
[THE APPELLANT]: I want -- You mean to tell me I cannot have -- Forget it.
THE COURT: All right, I am going to take that as --
THE COURT: -- a denial that he wishes to waive his right to counsel. [Defense counsel], you will continue to act as his attorney. The Court has not observed anything that would indicate you cannot continue to act in that capacity.
[¶6] The appellant argues that during that exchange the trial court failed to inquire sufficiently of whether a conflict of interest existed between counsel and the appellant. While his argument is not entirely clear, the only logical basis for this argument is a challenge to the trial court's decision not to appoint substitute counsel for the appellant.
[¶7] This Court reviews a trial court's decision not to appoint substitute counsel for an abuse of discretion:
"While a trial court has the power in its discretion to appoint substitute counsel, its refusal to do so is not error unless an abuse of discretion is shown. A factual showing of good cause for the appointment of substitute counsel is essential to the demonstration of an abuse of discretion, and good cause is to be found in incompetence, commitment to a position or an interest which would conflict with the furnishing of an effective defense to the accused, or other good reason to conclude that appointed counsel is unable to furnish effective assistance."
Bell v. State, 994 P.2d 947, 951 (Wyo. 2000) (quoting Irvin v. State, 584 P.2d 1068, 1071 (Wyo. 1978)). The Sixth Amendment does not guarantee a meaningful relationship with appointed counsel; the purpose of providing assistance of counsel is to ensure that criminal defendants receive a fair trial. Bell, 994 P.2d at 951. A defendant has no right to the appointed counsel of his choice nor to counsel who would blindly follow his instructions. Vargas v. State, 963 P.2d 984, 990 (Wyo. 1998). In evaluating Sixth Amendment claims, "'the appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such.'" Bell, 994 P.2d at 951-51 (quoting Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988)). A court's own evaluation of counsel and the effect of any substitution upon the scheduled proceedings are proper considerations in addition to the reasons given for a defendant's dissatisfaction. State v. Stenson, 132 Wash.2d 668, 940 P.2d 1239, 1272 (1997), cert. denied, 523 U.S. 1008, 118 S.Ct. 1193, 140 L.Ed.2d 323 (1998).
Allen v. State, 2002 WY 48, ¶ 27, 43 P.3d 551, 560-61 (Wyo. 2002).
[¶8] In Allen, we held that a trial court does have "a duty to make some formal inquiry into, or engage the defendant in a colloquy regarding, the defendant's reasons for dissatisfaction with his appointed counsel when substitution of counsel is requested." Id. at ¶ 32, at 562. We further held, however, that "even if [an] appellant demonstrates that the district court did not properly address his motions to substitute counsel, he must demonstrate that the error was prejudicial to his case (i.e., that he was not afforded effective representation as guaranteed by the Sixth Amendment)." Id. (citing United States v. Graham, 91 F.3d 213, 221 (D.C. Cir. 1996)).
[¶9] Here, the appellant's request for new counsel, in the form of the letter, was considered by the trial court. The court recessed so that counsel could discuss the letter with the appellant, and the court further engaged in colloquy with the appellant after he told his counsel he wanted to fire him. While the appellant suggests a more in-depth conversation should have taken place, our precedent simply requires that the trial court inquire into why the appellant was dissatisfied with his attorney. Allen, 2002 WY 48, ¶ 32, 43 P.3d at 562. The trial court was aware, from the two-page letter he personally received from the appellant, of why the appellant was dissatisfied. That information simply was reaffirmed when the trial court personally addressed the appellant and his counsel.
[¶10] It is also significant that this was not the first time the trial court had received a request from the appellant asking for the appointment of new counsel. One day before the trial was originally scheduled, the trial court held a hearing, which included a request from the appellant's first attorney to withdraw. Counsel explained that the appellant had sent her multiple letters questioning her ability to defend him, and that when she would visit him in the jail she was unable to engage in any meaningful communication. When given the chance to speak, the appellant told the trial court that he would feel more confident with any attorney other than the one currently appointed because he did not think she would ask the witnesses the right questions, she had been lying to him, she was hiding his medical records, and she was unethical. He also claimed she had been "rude, inconsiderate. Just pure evil to  to put it bluntly." The trial court determined the situation to be "extraordinary" and ordered that new counsel be appointed.
[¶11] Taking all of these facts into consideration, we cannot say the trial court abused its discretion when it refused to appoint the appellant new counsel during the trial. The record shows that the appellant did not demonstrate that his attorney was incompetent or suffered from a conflict of interest which would justify a substitution of counsel. Instead, the record shows that the appellant was a difficult individual who was unhappy with any action taken by his attorneys. It is clear he wanted an attorney that was willing to conduct the investigation and trial in the precise manner the appellant wished. This is insufficient to show good cause. See Vargas v. State, 963 P.2d 984, 990 (Wyo. 1998) (there is no right to counsel of defendant's choice nor a right to counsel who will blindly follow defendant's instructions). The language used by this Court in Miller v. State, 560 P.2d 739 (Wyo. 1977), is also appropriate here: "From this record it is difficult to conceive what kind of lawyer could in any manner satisfy this uncooperative defendant." Id. at 741.
Whether the district court denied the appellant his right to self-representation
[¶12] The appellant next claims that the trial court denied him his Sixth Amendment right to self-representation. Because this involves a constitutional issue it is a question of law we review de novo. Wilkie v. State, 2002 WY 164, ¶ 4, 56 P.3d 1023, 1024 (Wyo. 2002). We consider "the record as a whole when determining whether the defendant knowingly and voluntarily relinquished his right to representation of counsel." Trujillo v. State, 2 P.3d 567, 571 (Wyo. 2000).
[¶13] The Sixth Amendment to the United States Constitution provides that all criminal defendants are entitled to the assistance of counsel; however, it also "guarantees the rights of every citizen to conduct his own defense." Trujillo, 2 P.3d at 573 (citing Faretta v. California, 422 U.S. 806, 832, 95 S.Ct. 2525, 2539, 45 L.Ed.2d 562 (1975)).
A defendant has a constitutional right to waive his right to counsel and to represent himself at criminal trial. However, to be valid, the trial judge must ensure that the waiver of counsel is "an intentional relinquishment or abandonment of a known right or privilege." United States v. McConnell, 749 F.2d 1441, 1450-51 (10th Cir. 1984) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). Ideally, the trial judge should conduct a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro se.
Van Riper v. State, 882 P.2d 230, 234 (Wyo. 1994) (quoting United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991), cert. denied, 502 U.S. 1106, 112 S.Ct. 1200, 117 L.Ed.2d 440 (1992)). Ultimately, the trial court must determine that the defendant is waiving his right to counsel voluntarily, knowingly, and intelligently. Bolin v. State, 2006 WY 77, ¶ 31, 137 P.3d 136, 146 (Wyo. 2006). When determining whether the defendant waived his right to counsel, "a ...