129 Nev., Advance Opinion 11
IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL D. PATTERSON, No. 54408
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent. APR 0 4 2013
71-
Appeal from a judgment of conviction, pursuant to a jury
verdict, of conspiracy to commit murder, murder with the use of a deadly
weapon, and discharging a firearm at or into a vehicle. Eighth Judicial
District Court, Clark County; Valorie J. Vega, Judge.
Affirmed.
Law Office of Lisa Rasmussen, PC, and Lisa A. Rasmussen, Las Vegas,
for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B.
Wolfson, District Attorney, Steven S. Owens, Chief Deputy District
Attorney, and Carrie A. Morton, Deputy District Attorney, Clark County,
for Respondent.
BEFORE HARDESTY, PARRAGUIRRE and SAITTA, JJ.
OPINION
By the Court, HARDESTY, J.:
Appellant Michael Patterson was convicted of conspiracy to
commit murder, murder with the use of a deadly weapon, and discharge of
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a firearm into a vehicle. He now appeals arguing, among other things,
that his Sixth Amendment right to counsel was violated when he was
denied his counsel of choice at his preliminary hearing before the justice
court.
We recognize that the preliminary hearing is a "critical" stage
of criminal proceedings at which a defendant's Sixth Amendment right to
counsel attaches, and we conclude that the justice court's denial of
Patterson's request to be represented by retained counsel at the
preliminary hearing violated Patterson's qualified right to counsel of his
choice. In particular, the justice court failed to conduct a sufficient inquiry
into the request. We further conclude, however, that the denial of
Patterson's counsel of choice at the preliminary hearing is subject to
harmless-error review, and that the error was harmless. Accordingly, we
affirm.
FACTS AND PROCEDURAL HISTORY
Patterson's conviction stems from the shooting death of Bobby
Wilkerson in Las Vegas. Video surveillance footage of a parking lot on the
night of Wilkerson's death revealed that a person exited the passenger
side of a vehicle, approached the driver's side of Wilkerson's car, and then
jumped back into the passenger side of the other vehicle and drove away.
Wilkerson then exited his car and fell to the ground. He was later found
lying outside of his car with a shotgun wound to his head.
Wilkerson's mother informed the police that her son was
planning to meet with Patterson that evening to resolve a dispute
concerning a puppy that Patterson sold to Wilkerson. The police located
the vehicle pictured in the surveillance footage that left the scene in the
apartment complex where Patterson lived. The vehicle belonged to
2
Patterson's roommate, who told the police that she frequently let her
boyfriend' and Patterson use it. A search of Patterson's cell phone records
revealed that he made frequent calls to Wilkerson's cell phone, but the
calls stopped the night of the shooting.
The police then issued an arrest warrant for Patterson, and he
was later apprehended in Chicago, Illinois, by FBI Agent Pablo Araya.
During his interrogation by Agent Araya, Patterson allegedly confessed to
shooting Wilkerson and described where in his apartment he hid the
shotgun used in the killing. This interrogation was not recorded, but
following the interrogation, the police found the shotgun in Patterson's
apartment in the exact location he stated in his alleged confession. 2 Agent
Araya's testimony was the only evidence of the interrogation presented at
trial.
Attorney Richard Tannery was appointed to represent
Patterson on his criminal charges. Patterson retained another attorney,
Garrett Ogata, to represent him the evening prior to his preliminary
hearing before the justice court. 3 At the preliminary hearing, Ogata
sought substitution as counsel of record for Patterson. Ogata also
requested that the justice court continue Patterson's preliminary hearing
so that he could complete his preparation for the case. Without asking
"The boyfriend was charged as a codefendant, but is not a party to
this appeal. He allegedly drove the vehicle the night of the shooting.
2 Patterson was arrested in Chicago and extradited to Nevada after
his interrogation.
3 Patterson's
mother retained Ogata. However, Patterson met with
Ogata a week and a half earlier to discuss representation.
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Patterson any questions concerning Ogata's representation, the justice
court denied Ogata's request because Ogata was not prepared to proceed
immediately, and Patterson's appointed attorney, Tannery, was present
and prepared to represent him. However, the justice court allowed Ogata
to sit at counsel's table and provide input to Tannery. Following the
preliminary hearing, it appears that Ogata spoke with Tannery several
times but Ogata never requested that he be substituted as Patterson's
counsel of record for trial. Patterson was ultimately convicted on all
charges. This appeal follows.
DISCUSSION
On appeal, we address whether denial of a defendant's request
to be represented by retained counsel at the preliminary hearing stage,
when the defendant has been represented by appointed counsel up to that
point, violates the Sixth Amendment right to counsel of choice, and if so,
whether such a violation is subject to harmless-error review. We conclude
that there was a Sixth Amendment violation, and reaffirming our prior
jurisprudence, we hold that the error is subject to harmless-error review.
We further conclude that the State did not violate Brady v. Maryland, 373
U.S. 83 (1963), regarding disclosure of evidence. 4
4Patterson also seeks reversal of his conviction on the grounds that
(1) the district court abused its discretion when it denied Patterson's
motion to suppress his arrest warrant because it did not set forth specific
factual or legal findings in its order; (2) the arrest warrant did not contain
sufficient probable cause; and (3) the district court improperly denied
Patterson a hearing pursuant to Jackson v. Denno, 378 U.S. 368 (1964),
regarding the voluntariness of his confession. With regard to the motion
to suppress and the arrest warrant, we conclude that these arguments are
without merit, as there was "a substantial basis for concluding that
probable cause existed." Doyle v. State, 116 Nev. 148, 158, 995 P.2d 465,
472 (2000). Moreover, although the lack of factual findings in an order
continued on next page...
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The preliminary hearing is a "critical" stage at which a defendant's Sixth
Amendment right to counsel attaches
The Sixth Amendment to the United States Constitution
guarantees a criminal defendant's right to counsel, U.S. Const. amend. VI,
and that right is protected against state action by the Due Process Clause
of the Fourteenth Amendment. U.S. Const. amend. XIV; Gideon v.
Wainright, 372 U.S. 335, 341-45 (1963). The United States Supreme
...continued
may prevent appellate review and may be grounds for reversal, see Somee
v. State, 124 Nev. 434, 443, 187 P.3d 152, 158 (2008), we further conclude
that the arrest warrant attached to the motion in limine sufficiently
enabled us to review the district court's decision. Additionally, we decline
to consider Patterson's Jackson v. Denno argument because Patterson had
the burden to request such a hearing and he never made that request. See
Wilkins v. State, 96 Nev. 367, 372, 609 P.2d 309, 312 (1980) ("[F]ailure to
request a voluntariness hearing below precludes appellate
consideration."). Patterson further argues that the district court erred by:
(1) failing to record several bench conferences, (2) failing to properly
handle juror's questions, (3) failing to have Patterson present during a
telephone conference between the court and counsel, and (4) giving
improper jury instructions on manslaughter. We conclude that these
arguments are without merit and require no further discussion. Finally,
Patterson argues that the district court erred by admitting rap lyrics that
were inadmissible bad acts evidence. We note that Patterson never
objected to the admission of these lyrics at trial. See Flores v. State, 121
Nev. 706, 722, 120 P.3d 1170, 1180-81 (2005) ("[F]ailure to object will
[generally] preclude appellate review of an issue' unless plain error
affecting the defendant's substantial rights is shown." (second alteration
in original) (quoting Leonard v. State, 117 Nev. 53, 63, 17 P.3d 397, 403
(2001))). Furthermore, even if we were to agree with his contention that
the admission of the rap lyrics was plain error, we conclude that Patterson
has failed to show "actual prejudice or a miscarriage of justice." See Green
v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003) ("In conducting plain
error review, . . . the burden is on the defendant to show actual prejudice
or a miscarriage of justice.").
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Court has "construed the Sixth Amendment guarantee [of counsel] to
apply to 'critical' stages of the proceedings." United States v. Wade, 388
U.S. 218, 224 (1967). Pretrial proceedings are often considered to be
"critical" stages because "the results might well settle the accused's fate
and reduce the trial itself to a mere formality." Id.; see also Powell v.
Alabama, 287 U.S. 45, 57 (1932) (stating that the right to counsel "during
perhaps the most critical period of the proceedings . . . that is to say, from
the time of [a criminal defendant's] arraignment until the beginning of
[the defendant's] trial. . ." is as important "as [it is] at the trial itself'). A
pretrial proceeding is "critical" if "potential substantial prejudice to
defendant's rights inheres in the particular confrontation and the ability
of counsel to help avoid that prejudice." Wade, 388 U.S. at 227.
The Supreme Court has recognized that the presence of
counsel at a preliminary hearing may avoid prejudicial effect to the
defendant's rights because: (1) skilled cross-examination of the State's
witnesses may expose fatal flaws in the State's case, give rise to
impeachment evidence for the subsequent trial, and preserve testimony
from unavailable witnesses for later use at trial; (2) an attorney is better
equipped than a lay defendant to "effectively discover the case the State
has against his client and make possible the preparation of a proper
defense to meet that case at the trial"; and (3) an attorney is in a better
position than a lay defendant to make arguments concerning matters like
psychiatric evaluations or bail at preliminary hearings. Coleman v.
Alabama, 399 U.S. 1, 9-10 (1970) (plurality).
In addition, this court has previously recognized that
preliminary hearings can give rise to Sixth Amendment concerns. See
Messmore v. Fogliani, 82 Nev. 153, 154-55, 156, 413 P.2d 306, 306-07
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(1966) (holding that an unrepresented defendant's Sixth Amendment
rights to counsel and to confrontation of witnesses were violated when
witness testimony taken during the preliminary hearing was introduced
into evidence at trial). We have also recognized that a preliminary
hearing is an adversarial proceeding at which a defendant's Sixth
Amendment right to counsel attaches. See Kaczmarek v. State, 120 Nev.
314, 326, 91 P.3d 16, 25 (2004) ("[T]he Sixth Amendment right to counsel
does not even attach in a case until adversarial proceedings have
commenced. . . 'whether by way of formal charge, preliminary hearing,
indictment, information, or arraignment.' (quoting Fellers v. United
States, 540 U.S. 519, 523 (2004) (quoting Brewer v. Williams, 430 U.S.
387, 398 (1977)))); see also Dewey v. State, 123 Nev. 483, 488, 169 P.3d
1149, 1152 (2007).
Because the preliminary hearing is a "critical" stage in the
criminal proceeding at which a defendant's Sixth Amendment right to
counsel attaches, we must examine the justice court's denial of Patterson's
request for counsel of his choice to determine whether error occurred. We
review the justice court's denial of Patterson's request to substitute Ogata
as counsel for an abuse of discretion. Young v. State, 120 Nev. 963, 968,
102 P.3d 572, 576 (2004).
The Sixth Amendment right to counsel encompasses two
different rights, namely, the right to effective assistance of counsel and the
right of a non-indigent defendant to be represented by the counsel of his or
her choice. U.S. v. Rivera-Corona, 618 F.3d 976, 979 (9th Cir. 2010). The
first right (to effective assistance of counsel) is at issue where an indigent
criminal defendant seeks to replace court-appointed counsel with new
appointed counsel. Id. at 978. Thus, the three-part inquiry that is used to
7
evaluate an attempt to substitute one appointed attorney for another, see
Young, 120 Nev. at 968-69, 102 P.3d at 576, "is designed to determine
whether [an] attorney-client conflict is such that it impedes the adequate
representation that the Sixth Amendment guarantees to all defendants,
including those who cannot afford to hire their own attorneys," Rivera-
Corona, 618 F.3d at 979. But the other Sixth Amendment right is at issue
where a criminal defendant seeks to replace court-appointed counsel with
privately retained counsel, or previously retained counsel with newly
retained counsel, or privately retained counsel with court-appointed
counsel. In that context, the focus is on the right to counsel of one's choice.
Id.
Generally, a defendant is free to replace existing counsel with
retained counsel. Miller v. Blackletter, 525 F.3d 890, 895 (9th Cir. 2008).
The right to counsel of one's choice is not absolute, however, and a court
has "wide latitude in balancing the right to counsel of choice against the
needs of fairness. . . and against the demands of its calendar." Gonzalez-
Lopez, 548 U.S. at 152; see also Ryan v. Dist. Ct., 123 Nev. 419, 426, 168
P.3d 703, 708 (2007) ("[C]riminal defendants 'who can afford to retain
counsel have a qualified right to obtain counsel of their choice." (quoting
United States v. Ray, 731 F.2d 1361, 1365 (9th Cir. 1984))). Thus, the
appropriate test to determine whether the justice court abused its
discretion in denying Patterson's request to substitute retained counsel
(Ogata) in place of appointed counsel (Tannery) is whether denying the
substitution: (1) would have significantly prejudiced Patterson, or (2) "was
untimely and would result in a 'disruption of the orderly processes of
justice unreasonable under the circumstances of the particular case."
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People v. Lara, 103 Cal. Rptr. 2d 201, 211-12 (Ct. App. 2001) (quoting
People v. Ortiz, 800 P.2d 547, 552 (Cal. 1990)).
At the commencement of the preliminary hearing, Patterson
requested to substitute his court-appointed counsel, Tannery, with his
retained counsel, Ogata. Ogata informed the justice court that he had
been retained the day before the preliminary hearing and had reviewed
about half of the discovery in the case. The justice court denied
Patterson's request for chosen counsel because Ogata was unprepared,
Tannery was present and prepared to represent Patterson, and the State
had an out-of-state witness (FBI agent Araya) present to testify. However,
the justice court's reasons for denying Patterson's request did not take into
consideration any prejudice to Patterson or assess whether Ogata's
substitution would cause an unreasonable disruption in the proceedings.
Although Ogata's substitution may have caused some
inconvenience and delay because Patterson's request was made at the
preliminary hearing, the justice court failed to "balance the defendant's
interest in new counsel against the disruption, if any, flowing from the
substitution." Lara, 103 Cal. Rptr. 2d at 212. For example, the justice
court did not inquire as to the amount of time Ogata would need to
prepare for the preliminary hearing or the inconvenience to the State or
its out-of-state witness resulting from a short delay. Furthermore, any
delay in the preliminary hearing to allow Patterson's chosen counsel time
to prepare likely would have been minimal given Ogata's review of some of
the discovery and the significantly lesser evidentiary burden required to
be met at the preliminary hearing, see Sheriff v. Middleton, 112 Nev. 956,
961, 921 P.2d 282, 286 (1996) (stating that the State need only present
"marginal" or "slight" evidence at the preliminary hearing to establish
probable cause that a crime occurred and that the defendant is the person
who committed the crime).
This court has previously noted that an abuse of discretion
occurs whenever a court fails to give due consideration to the issues at
hand. State v. Dist. Ct. (Armstrong), 127 Nev. „ 267 P.3d 777, 780
(2011) (citing to Jones Rigging and Heavy Hauling v. Parker, 66 S.W.3d
599, 602 (2002)); see also United States v. Miller, 722 F.2d 562, 565 (9th
Cir. 1983) (holding that "as a general rule, the existence of discretion
requires its exercise"). Here, the justice court failed to make an adequate
inquiry and give due consideration to the prejudice to Patterson or the
extent of the delay or inconvenience that the substitution of Ogata would
have caused. This was an abuse of discretion. 5
We must now determine whether the deprivation of
Patterson's Sixth Amendment right to counsel of choice at the preliminary
hearing was a structural error warranting reversal of Patterson's
judgment of conviction, or trial error subject to harmless-error review.
5 Patterson claims that his Sixth Amendment right to counsel was
also violated at the district court level when the district court allowed
Tannery to continue as Patterson's attorney even though Ogata had
approached the prosecutors the morning of the trial and informed them
that he was Patterson's attorney. We disagree. The district court was
never asked to review what occurred at the justice court level, and Ogata
never formally requested that he be substituted as counsel of record after
the preliminary hearing.
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The denial of Patterson's Sixth Amendment right to retain his counsel of
choice at his preliminary hearing was trial error and is thus reviewed for
harmless error
Patterson contends that the denial of his Sixth Amendment
right to counsel of choice at the preliminary hearing is a structural error
that requires reversal of his conviction. We disagree.
There are two classes of constitutional errors, "trial error[s]"
and "structural defects." Gonzalez-Lopez, 548 U.S. at 148; Arizona v.
Fulminante, 499 U.S. 279, 307-08, 309-10 (1991). "[T]rial error [s]" are
subject to harmless-error review because these errors "may. . . be
quantitatively assessed in the context of other evidence presented in order
to determine whether [they were] harmless beyond a reasonable doubt."
Fulminante, 499 U.S. at 307-08. Conversely, "structural defects" "affect[ ]
the framework within which the trial proceeds, rather than simply an
error in the trial process itself." Id. at 309-10. Such errors are grounds for
reversal because they "defy analysis by 'harmless-error' standards." LL. at
309.
It has long been established that the complete denial of
counsel at trial is a structural error under the Sixth Amendment. Gideon
v. Wainwright, 372 U.S. 335, 344-45 (1963). Furthermore, the Supreme
Court has held that the "deprivation of the right to counsel of
choice . . . unquestionably qualifies as structural error" when it occurs at
the trial court level because "the erroneous denial of counsel bears directly
on the framework within which the trial proceeds." Gonzalez-Lopez, 548
U.S. at 150 (internal quotations omitted). Therefore, we recognize that
had Patterson erroneously been denied his retained counsel of choice at
trial, it would have been a structural error requiring reversal of the
judgment of conviction.
11
However, as we have noted, not all "errors involving the right
to counsel are reversible per se," and we have distinguished Gideon and its
progeny from cases where the error did not result in total deprivation of
counsel. Manley v. State, 115 Nev. 114, 123, 979 P.2d 703, 708-09 (1999)
(applying harmless-error review to a claim that the defendant's Sixth
Amendment right to counsel was violated by prosecutorial questions
abridging the attorney-client privilege because the defendant was
"represented by counsel at all times" and such an error "did not affect the
framework within which the trial proceeded"). In addition, we have
expressly held that "refusal by the magistrate to permit [a criminal
defendant] to have counsel of his own choosing" at a preliminary hearing
"falls into the category of harmless error" where the defendant was
represented by counsel. State v. Rollings, 58 Nev. 58, 63, 68 P.2d 907, 909
(1937), overruled on other grounds by Sturrock v. State, 95 Nev. 938, 943,
604 P.2d 341, 345 (1979), receded from by Lisle v. State, 114 Nev. 221, 954
P.2d 744 (1998). In further support of our position, the Supreme Court
has held that at the preliminary hearing stage, "[t]he test to be applied is
whether the denial of counsel at the preliminary hearing was harmless
error." Coleman v. Alabama, 399 U.S. 1, 11 (1970) (majority). 6
Accordingly, we reaffirm our prior jurisprudence and specifically hold that
6 0ther jurisdictions have similarly held that violations of a
defendant's Sixth Amendment right to counsel of choice at the preliminary
hearing stage are reviewed for harmless error. See Ditch v. Grace, 479
F.3d 249, 254 (3d Cir. 2007); U.S. v. Lott, 433 F.3d 718, 723 (10th Cir.
2006); State v. Brown, 903 A.2d 169, 178 (Conn. 2006).
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violations of a defendant's Sixth Amendment right to counsel of choice at a
preliminary hearing are reviewed for harmless error.
An error is harmless if this court can determine, beyond a
reasonable doubt, that the error did not contribute to the defendant's
conviction. Hernandez v. State, 124 Nev. 639, 653, 188 P.3d 1126, 1136
(2008). Patterson has not demonstrated how the justice court's denial of
his counsel of choice at the preliminary hearing contributed to his
conviction, particularly since Ogata was allowed to sit at counsel's table
during the hearing and provide input to Tannery.
Furthermore, Patterson has not demonstrated how having
Ogata as counsel at the preliminary hearing instead of Tannery would
have produced a different result at trial when the State presented
overwhelming evidence of Patterson's guilt. This evidence included proof
that Wilkerson met with Patterson on the night of his death, the vehicle
from the surveillance video belonged to Patterson's roommate, the gun
used to kill Wilkerson was found concealed in Patterson's apartment, and
Patterson frequently called Wilkerson before the shooting but all calls to
Wilkerson's cell phone from Patterson's phone ceased after the shooting.
In addition, FBI Agent Ayala testified that Patterson confessed to shooting
Wilkerson. Based on this evidence, we can conclude, beyond a reasonable
doubt, that the justice court's denial of Patterson's counsel of choice did
not contribute to Patterson's conviction. Therefore, we hold that the
justice court's denial of Patterson's right to counsel of choice was harmless
error.
The State did not commit a Brady violation
Patterson contends that his rights under Brady v. Maryland,
373 U.S. 83 (1963), were violated because of the State's failure to provide
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information that the FBI never records interviews, which could have been
used to impeach Agent Ayala's testimony. 'Brady and its progeny require
a prosecutor to disclose evidence favorable to the defense when that
evidence is material either to guilt or to punishment." State v. Huebler,
128 Nev. 275 P.3d 91, 95 (2012) (quoting State v. Bennett, 119
Nev. 589, 599, 81 P.3d 1, 8 (2003)). A defendant's rights are violated
under Brady where: "(1) the evidence is favorable to the accused, either
because it is exculpatory or impeaching; (2) the State withheld the
evidence, either intentionally or inadvertently; and (3) . . . the evidence
was material." Id. (internal quotations omitted). Evidence is material if
"there is a reasonable probability of a different result [at trial] if the
defense had known" of the withheld evidence. Lay v. State, 116 Nev.
1185, 1196, 14 P.3d 1256, 1264 (2000).
Here, the purported impeachment evidence consisted of FBI
memoranda stating that FBI agents are encouraged to seek permission to
record interviews. However, encouragement to seek permission to record
interviews necessarily implies that the FBI's default policy is not to record
interviews. Thus, this evidence does not impeach Ayala's testimony that
the FBI's policy is not to record interviews. Furthermore, we cannot
conclude that there was a reasonable probability that the result would
have been different had this evidence been disclosed. Therefore, we
conclude that the State did not commit a Brady violation.
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Having determined that none of Patterson's claims warrant
reversal, we affirm the judgment of conviction. 7
J.
7 Patterson contends that the cumulative errors during his trial
warrant reversal of his conviction. We disagree. "The cumulative effect of
errors may violate a defendant's constitutional right to a fair trial even
though errors are harmless individually." Valdez v. State, 124 Nev. 1172,
1195, 196 P.3d 465, 481 (2008) (quoting Hernandez v. State, 118 Nev. 513,
535, 50 P.3d 1100, 1115 (2002)). "When evaluating a claim of cumulative
error, we consider the following factors: '(1) whether the issue of guilt is
close, (2) the quantity and character of the error, and (3) the gravity of the
crime charged." Id. (quoting Mulder v. State, 116 Nev. 1, 17, 992 P.2d 845,
854-55 (2000)). Despite the serious nature of the crimes charged, the
State presented compelling evidence of Patterson's guilt and we are not
convinced that the cumulative effect of the two errors acknowledged in
this opinion—the denial of retained counsel of his choice at the
preliminary hearing and the admission of the rap lyrics (addressed supra
note 4)—deprived Patterson of his constitutional right to a fair trial. As a
result, we conclude that Patterson's cumulative error challenge is
unavailing.
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PARRAGUIRRE, J., concurring in part and dissenting in part:
I concur with most of the majority's determination, but I part
company in their finding that the justice court abused its discretion in
failing to adequately consider the delay or inconvenience the substitution
of counsel would occasion.
Here, after Ogata sought to substitute as counsel and continue
the preliminary hearing set that day, the justice court conducted a bench
conference and thereafter stated several factors that directly implicated
the inconvenience that a delay would cause. Particularly, the court noted
that Tannery was qualified to handle the case and was prepared to
proceed, and that both the State and codefendant's counsel were prepared
to move forward. Additionally, the court recognized the presence of the
State's out-of-state witness and implicit therein, the resulting
inconvenience. Finally, the court noted that it did not believe that
bifurcating the hearing was appropriate.
Under these circumstances, I do not find that the justice court
abused its discretion.
ct_AA
Parraguirre
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