State v. Boucher

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

LAWRENCE EMILE BOUCHER, Appellant.

No. 1 CA-CR 15-0763
FILED 12-13-2016

Appeal from the Superior Court in Mohave County
No. S8015CR201301012
The Honorable Steven F. Conn, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
 STATE v. BOUCHER
Decision of the Court

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Kenton D. Jones and Judge Randall M. Howe joined.

K E S S L E R, Judge:

¶1 Appellant Lawrence Emile Boucher appeals his convictions
and sentences for ten felonies. He argues the superior court violated his
Sixth Amendment right to counsel by denying his request for alternate
counsel without conducting a hearing. He also argues the court erred by
refusing to include in the final jury instructions that the jury should not
infer guilt from his absence at trial. For the following reasons, we affirm
Boucher’s convictions and sentences.

FACTUAL AND PROCEDURAL HISTORY

¶2 Boucher and an eleven-year-old girl shared a bed, where
Boucher forced her to perform sexual acts and to touch his genitals. After
being contacted by the police, Boucher later admitted receiving oral sex
from the girl and touching her upper thighs.

¶3 Boucher was indicted for eleven felonies. Shortly after the
indictment, Boucher requested and received new counsel based on a
conflict of interest of his original appointed counsel. Over the next two
years, Boucher requested at least twenty continuances. Two weeks before
trial, Boucher attended the final management conference telephonically.
During the conference, Boucher’s attorney requested a continuance so that
Boucher could find new counsel. The superior court denied the
continuance, noting that “[Boucher is] already on his second attorney. . . .
[I]f [he] was going to hire an attorney, he should have done . . . that before
now.” At no time during the conference did Boucher articulate any reason
for requesting new counsel.

¶4 Boucher failed to appear at trial. After addressing preliminary
matters, the superior court recessed to give Boucher a chance to appear.
Boucher did not appear. During voir dire the court addressed Boucher’s
absence:

I am concerned that there might be some of you that would
feel that the defendant’s absence from the courtroom is some

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Decision of the Court

sort of evidence that you could consider against him. It is not.
His absence is just the same for procedural and legal purposes
as if he were here and invoked his right to not testify, which
he would have the right to do.

The court excused four jurors who indicated that Boucher’s absence would
influence their decision.

¶5 During the second day of trial, the superior court discovered
a fax Boucher had sent directly to the court dated August 31, 2015:

Dear Sir Today at the Hearing I did not hear what my attorney
Thomas Jones said about me wanting another attorney. I
would like you to consider the reason I want the court to give
me another attorney, the reason is. Is [sic] that Mr. Jones does
not believe in me nor this case, He has me convicted already
and we haven’t even gone to trial. And the reason I haven’t
spoken up sooner was because he had me doing stuff to help
my case. Going to a p[sycho]logist which I thought would
help my case but it didn’t. . . . I would like to have [an]
attorney that at least believes in me.

The court acknowledged that the fax was sent before the trial. However, the
court denied the request noting that Boucher had failed to appear at trial to
object to his current counsel’s representation.

¶6 In settling final jury instructions, Boucher’s attorney
requested that the superior court reiterate that Boucher’s presence could
not be held against him in considering guilt. Because the issue had already
been dealt with in voir dire, the court denied the request. Although the
superior court did not address Boucher’s absence directly, it instructed that

the defendant is not required to testify. The decision on
whether to testify is left to the defendant. You must not
conclude that the defendant is likely to be guilty because he
does not testify. You must not discuss this fact, or let it [a]ffect
your deliberations in any way.

¶7 During closing arguments, Boucher’s attorney addressed
Boucher’s absence:

The final thing I would say, of course, is, as maybe the 800-
pound gorilla in the room, I have no idea why Mr. Boucher is
not here; but that has no bearing. Whether or not Mr. Boucher

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was seated next to me the last two days or wasn’t, has no
bearing on what occurred back in August 9th and 10th of
2013; so please don’t factor that in one way or the other.

¶8 The jury convicted Boucher of ten felonies and the court
sentenced him to two consecutive life sentences with an additional twenty-
five years’ imprisonment. Boucher timely appealed. We have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1)
(2016), 13-4031 (2016), and 13-4033(A)(1) (2008).1

DISCUSSION

¶9 Boucher argues the superior court (1) violated his Sixth
Amendment right to counsel by denying his request for alternate counsel
without conducting a hearing; and (2) erred by refusing to instruct the jury
regarding his absence from the trial. Boucher asks that we either remand
the matter for an evidentiary hearing or vacate his convictions and remand
for a new trial.

I. Sixth Amendment Right to Counsel

¶10 Boucher argues the superior court violated his Sixth
Amendment right to counsel by denying his request for alternate counsel
without conducting a hearing pursuant to State v. Torres, 208 Ariz. 340
(2004). Under Torres, “[t]he nature of the inquiry [into a request for alternate
counsel] depend[s] upon the nature of the defendant’s request.” Id. at 343,
¶ 8. Only sufficiently specific, factually based allegations warrant a hearing.
Id. Because Boucher’s complaint was not sufficiently specific, the court did
not violate his Sixth Amendment right to counsel.

¶11 The Sixth Amendment guarantees criminal defendants
assistance of counsel. U.S. Const. amend. VI. It is well established that this
guarantees competent counsel. See, e.g., McMann v. Richardson, 397 U.S. 759,
771 n.14 (1970) (“It has long been recognized that the right to counsel is the
right to effective assistance of counsel.”). However, the defendant is not
“entitled to counsel of choice, or to a meaningful relationship with his or
her attorney.” State v. Moody, 192 Ariz. 505, 507, ¶ 11 (1998) (citation
omitted). To obtain new counsel, the defendant must show a complete
breakdown in communication or an irreconcilable conflict between the
defendant and appointed counsel. Torres, 208 Ariz. at 342, ¶ 6. While the
Sixth Amendment requires a court to inquire as to the basis of a defendant’s

1 We cite to the current version of statutes unless changes material to
this decision have occurred.

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request for new counsel, the nature of the inquiry is determined by the
nature of the request. Id. at 343, ¶ 7.

¶12 In Torres, the defendant had complained in the superior court
that “he could no longer speak with his lawyer about the case, he did not
trust him, he felt threatened and intimidated by him, there was no
confidentiality between them, and his counsel was no longer behaving in a
professional manner.” Id. at 342, ¶ 2. The court denied the motion. Id.
“[G]eneralized complaints about differences in strategy may not require a
formal hearing or an evidentiary proceeding.” Id. at 343, ¶ 8. However, “[i]f
a defendant makes sufficiently specific, factually based allegations in
support of his request for new counsel, the . . . court must conduct a hearing
into his complaint.” Id. (citations and quotations omitted). Applying this
standard, the court concluded that Torres “presented specific factual
allegations that raised a colorable claim that he had an irreconcilable
conflict with his appointed counsel.” Id. at 343, ¶ 9.

¶13 Here, Boucher telephonically attended the final management
conference during which his attorney moved for a continuance for Boucher
to request alternate counsel.2 The superior court denied the motion,
reasoning that Boucher should have retained alternate counsel earlier.
Because no allegations of an irreconcilable conflict between Boucher and his
attorney were made, no Torres inquiry was necessary. Nor did Boucher’s
fax to the superior court articulate a specific basis upon which the court
might be required to address the appointment of alternate counsel. Instead,
it merely alleged that Boucher’s attorney did not “believe in [him] nor this
case.” Boucher did not state any specific facts in support of these allegations
except that he believed that his attorney’s instructions for trial preparation
were unhelpful. Indeed, the fax admitted his counsel was a good attorney
and reflected that counsel had suggested Boucher go to a psychologist or
counselor. The fact that such advice might not have been helpful for trial,
at worst, merely shows a difference in trial strategy. Moreover, Boucher did
not give the court a chance to further inquire with Boucher about these
allegations because Boucher failed to appear at trial. The court considered
and denied the motion, noting Boucher’s absence from trial. Given the
nature of Boucher’s allegations and the fact that the court twice considered
Boucher’s motion for new counsel, it did not violate his Sixth Amendment
rights.

2 Boucher’s attorney requested a continuance so Boucher could obtain
a new attorney. Thus, the denial of the request was in effect a denial of a
request for alternate counsel.

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II. Jury Instructions

¶14 Boucher argues the superior court erred by refusing “to
advise the jury prior to deliberations to not hold his voluntary absence from
trial against him or infer guilt based on his absence.” We review for abuse
of discretion whether the trial court erred in refusing requested jury
instructions. State ex rel. Thomas v. Granville, 211 Ariz. 468, 471, ¶ 8 (2005)
(citation omitted). When addressing whether jury instructions accurately
stated the law, we review de novo. State v. Fierro, 220 Ariz. 337, 338, ¶ 4
(App. 2011) (citation omitted). In evaluating instructions, we consider them
in their entirety, Granville, 211 Ariz. at 471, ¶ 8 (citation omitted), and within
the context of the trial, State v. Bruggeman, 161 Ariz. 508, 510 (App. 1989)
(citation omitted) (“Appellate courts do not evaluate jury instructions out
of context.”). Ultimately, the inquiry is whether the “jury receive[d] the
information it need[ed] to arrive at a legally correct decision.” Granville, 211
Ariz. at 471, ¶ 8 (citation omitted).

¶15 The crux of Boucher’s argument rests on his contention the
superior court implied that his failure to appear was a reflection of his
consciousness of guilt. Based on this, he argues that the court erred by
failing to correct this implication by refusing his request to instruct the jury
not to infer guilt from his absence. However, the court’s statements and
actions during voir dire made clear the jury should not infer guilt from his
absence. Soon after the court stated that Boucher may not appear, it
explicitly stated that Boucher’s absence was not evidence of guilt. The court
then excused four jurors who indicated that Boucher’s absence would
influence their decision. Thus, the court clearly informed the jury that it
should not imply guilt from Boucher’s absence. We assume that juries obey
their instructions. State v. McCurdy, 216 Ariz. 567, 574, ¶ 17 (App. 2007)
(citation omitted).

¶16 Moreover, we view the adequacy of jury instructions in light
of the closing arguments. Bruggeman, 161 Ariz. at 510. Here, in addition to
the statements made by the superior court during voir dire, Boucher’s
attorney addressed Boucher’s absence during closing arguments.
Specifically, he stated that “[w]hether or not Mr. Boucher was seated next
to me the last two days or wasn’t, has no bearing on what occurred . . . so
please don’t factor that in one way or the other.” Considering the
instructions in conjunction with the court’s statements and actions during
voir dire and defense counsel’s closing argument, the jury received
sufficient direction and information not to imply guilt from Boucher’s
absence. Thus, the court did not abuse its discretion by denying Boucher’s
requested instruction.

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Decision of the Court

CONCLUSION

¶17 For the foregoing reasons, we affirm Boucher’s convictions
and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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