State v. Hall

2013 UT App 4
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Plaintiff and Appellee,

v.

TRAVIS PATRICK HALL,

Defendant and Appellant.

Opinion
No. 20100221‐CA
Filed January 10, 2013

Second District, Farmington Department
The Honorable Jon M. Memmott
No. 091700071

Scott L. Wiggins, Attorney for Appellant
John E. Swallow and Karen A. Klucznik, Attorneys for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES JAMES Z. DAVIS
and CAROLYN B. MCHUGH concurred.

VOROS, Judge:

¶1 Travis Patrick Hall appeals his conviction for aggravated
assault, a third degree felony, arising from a fight with his em‐
ployer at a pizza restaurant. He claims that the trial court erred by
not instructing the jury on self‐defense and in not properly
handling his complaints about trial counsel. We affirm.
 State v. Hall

BACKGROUND

¶2 Hall was employed as a delivery driver by a pizza franchise.
His scheduled hours had been reduced, he believed, in retaliation
for complaints he had voiced. Seeking more work hours, Hall met
with one of the four owners of the franchise (Owner) and his area
manager (Manager). The three stepped outside the restaurant to
discuss Hall’s request. The discussion became heated. Owner
ordered Manager to replace Hall for the day, and Manager went
inside to do so. Owner told Hall, “If you don’t like working for my
company, get out.” Hall asked, “Why you got a problem, man?”
Owner began to reply, “Because—“ but was cut off. Four seconds
later, Owner screamed.1

¶3 On her way back out of the building, Manager saw Hall hit
Owner’s face once and cock his fist for a second blow. She told a
coworker to call 911. Manager found Owner lying on the ground
with “blood everywhere.” Owner was “bleeding quite a bit,” had
two black eyes, had a “pretty severe laceration on his lip,” and
sustained a broken jaw. He later needed surgery to permanently
implant a titanium plate, recast his nose, and wire his mouth shut
for three weeks.

¶4 Hall was charged with aggravated assault resulting in
serious bodily injury, a second degree felony. See Utah Code Ann.
§ 76‐5‐103 (LexisNexis 2008).2 The jury was instructed on this
charge as well as several lesser included offenses: aggravated
assault (a third degree felony), assault causing substantial bodily
injury (a class A misdemeanor), and assault (a class B misde‐
meanor). During closing arguments, Hall’s counsel argued that
none of these offenses “actually fit . . . and in fact what [Hall] did

1. An audio recording of the encounter was admitted into evidence.

2. We cite the version of the Utah Code in effect at the time of the
events giving rise to this case.

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 State v. Hall

was something any of us would do, try to protect ourselves when
somebody came after us.” In rebuttal, the prosecutor stated,
“There’s no question that serious bodily injury was caused. There’s
no question that the defendant caused it and there’s no question
that it was [not] self defense.” Defense counsel did not request, and
the trial court did not give, a self‐defense instruction.

¶5 The jury convicted Hall of the lesser included offense of
aggravated assault (a third degree felony). In so doing, the jury
found that Hall had used “means or force likely to produce death
or serious bodily injury.” See id. § 76‐5‐103(1)(b), ‐(3).

¶6 At sentencing, Hall surprised his counsel by announcing his
intention to proceed pro se and to move for a new trial. Hall
alleged that his counsel was “insufficient” and that perjury and
forgery were “entered in as evidence.” Hall’s counsel responded
that he had “talked to [Hall] this morning about the sentence, what
we were going to argue. This is the first time he’s said anything to
me about [the motions].” After a brief discussion, Hall allowed his
counsel to represent him at sentencing.

¶7 Immediately after sentence was pronounced, Hall filed two
written pro se motions: a motion to proceed pro se and a motion
for a new trial. The latter claimed, among numerous other com‐
plaints, that his trial counsel had been ineffective and that the trial
court had committed plain error by not instructing the jury on self‐
defense. In addition, the following day, Hall sent a letter to the trial
court requesting that the State “let me handle stuff myself or . . .
supply me with sufficient [counsel] to handle it.” The trial court
did not appoint conflict counsel or otherwise act on Hall’s motion
to proceed pro se. But it denied Hall’s motion for a new trial. Both
the State’s response and the trial court’s ruling were mailed to Hall
and not to his counsel.

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 State v. Hall

ISSUES AND STANDARDS OF REVIEW

¶8 Hall contends that the trial court erred as a matter of law by
failing to inquire into his dissatisfaction with counsel. Whether a
trial court should have inquired further into a defendant’s dissatis‐
faction with counsel is reviewed for an abuse of discretion. See State
v. Vessey, 967 P.2d 960, 962 (Utah Ct. App. 1998).

¶9 Hall also contends that he was unlawfully denied a jury
instruction on self‐defense. He frames this issue three ways,
arguing (1) that the trial court committed plain error by not sua
sponte giving the instruction, (2) that his trial counsel performed
ineffectively by not requesting the instruction, and (3) that the
court abused its discretion in denying his motion for a new trial
based on the absence of the instruction. To prove plain error, an
appellant must show that “(i) [a]n error exists; (ii) the error should
have been obvious to the trial court; and (iii) the error is
harmful . . . .” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). When
a trial court has ruled on an ineffective assistance claim, we review
the trial court’s findings of fact, if any, for clear error and its legal
conclusions for correctness. State v. Templin, 805 P.2d 182, 186 (Utah
1990). We review a “trial court’s decision to deny [a] . . . motion for
a new trial . . . under an abuse of discretion standard. However, we
review the legal standards applied by the [trial] court in denying
[a] motion [for a new trial] for correctness.” Van Frank v. Salt Lake
City Corp., 2012 UT App 188, ¶ 7, 283 P.3d 535 (alterations and first
omission in original) (citations and internal quotation marks
omitted).

¶10 Finally, Hall contends that the trial court plainly erred by
denying his pro se motion for a new trial without first obtaining a
knowing and intelligent waiver of his right to counsel. To prove
plain error, an appellant must show that “(i) [a]n error exists; (ii)
the error should have been obvious to the trial court; and (iii) the
error is harmful . . . .” Dunn, 850 P.2d at 1208.

20100221‐CA 4 2013 UT App 4
 State v. Hall

ANALYSIS

I. Post‐Trial Complaints About Counsel’s Trial Performance
Must Be Raised as Ineffectiveness Claims.

¶11 Hall contends that the trial court erred by failing to inquire
into his dissatisfaction with counsel. Hall expressed his
dissatisfaction with appointed counsel in two ways: by motion and
by letter. Immediately after sentencing, Hall filed a one‐page
motion to proceed pro se and an eighty‐three‐page (with exhibits)
pro se motion for a new trial. This motion alleged his trial counsel’s
ineffectiveness before and during trial. As relevant to this appeal,
Hall complained that his counsel failed to request a jury instruction
on self‐defense. The following day, he wrote a letter to the trial
court stating that he had “called and stopped by [appointed
counsel’s] office repeatedly[, but] he would never return my calls.”
The trial court denied the pro se motion for a new trial on the
ground that, given the strength of the evidence against Hall at trial,
any error was harmless. However, the court did not address the
merits of the complaints stated in Hall’s letter. Hall now argues
that the trial court erred in not inquiring specifically into those
concerns.

¶12 “In all criminal prosecutions, the accused shall enjoy the
right to . . . have the Assistance of Counsel for his defence.” U.S.
Const. amend. VI; see also Utah Const. art. I, § 12. Indigent
defendants are entitled to appointed counsel. Gideon v. Wainwright,
372 U.S. 335, 340, 344–45 (1963). However, “[w]hile an indigent
defendant has a right to have counsel appointed to represent him,
he does not have a constitutional right to a lawyer other than the
one appointed, absent good cause.” State v. Pursifell, 746 P.2d 270,
272 (Utah Ct. App. 1987) (citation omitted). Good cause for
substitution of appointed counsel includes “‘a conflict of interest,
a complete breakdown in communication or an irreconcilable
conflict which leads to an apparently unjust verdict.’” State v.
Lovell, 1999 UT 40, ¶ 31, 984 P.2d 382 (quoting United States v.
Young, 482 F.2d 993, 995 (5th Cir. 1973)).

20100221‐CA 5 2013 UT App 4
 State v. Hall

¶13 In Pursifell, we held that when a defendant expresses
dissatisfaction with appointed counsel, the trial court “must make
some reasonable, non‐suggestive efforts to determine the nature of
the defendant’s complaints and to apprise itself of the facts
necessary to determine whether the defendant’s relationship with
his or her appointed attorney has deteriorated to the point that
sound discretion requires substitution or even to such an extent
that his or her Sixth Amendment right to counsel would be violated
but for substitution.” Pursifell, 746 P.2d at 273. This is because
“[w]hen a defendant is forced to stand trial with the assistance of
an attorney with whom he has become embroiled in an
irreconcilable conflict, he is deprived of the effective assistance of
any counsel . . . .” Id. at 274 (citation and internal quotation marks
omitted).

¶14 However, in State v. Franco, 2012 UT App 200, 283 P.3d 1004,
we clarified that the Pursifell procedure does not apply in cases
where the defendant raises his dissatisfaction with counsel’s trial
performance after the trial is complete.3 See Franco, 2012 UT App
200, ¶¶ 3–5. “When a defendant’s complaints about counsel’s trial
performance are disclosed after the trial has ended, his or her
remedy lies in an appeal challenging the effectiveness of counsel’s
assistance.” Id. The reason for this distinction is evident: post‐trial
substitution of counsel cannot protect a defendant’s right to
adequate representation at trial. At that stage, the question is not
whether a defendant is entitled to replacement counsel, but
whether his trial counsel functioned “as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment.” Strickland v. Washington,
466 U.S. 668, 687 (1984).

3. Franco was issued after the present case was briefed but before
it was argued. The State filed a letter of supplemental authority
pursuant to rule 24(j) of the Utah Rules of Appellate Procedure to
alert this court to the case. Hall did not file a response or request
supplemental briefing, nor does he argue that Franco is inapplicable
here.

20100221‐CA 6 2013 UT App 4
 State v. Hall

¶15 The present claim of error is governed by Franco, not
Pursifell. In fact, if Pursifell did not control in Franco, a fortiori it
does not control here. Franco alerted the court to his complaints
about counsel’s trial performance after trial but before sentencing;
Hall alerted the court to his complaints about counsel’s trial
performance after sentencing. In fact, he agreed on the record to his
trial counsel representing him at sentencing. Thus, as in Franco,
“any prejudicial impact on the trial ha[d] already occurred.” Franco,
2012 UT App 200, ¶ 5. Accordingly, Hall’s “remedy lies in an
appeal challenging the effectiveness of counsel’s assistance.” Id.
Therefore, the trial court did not abuse its discretion by failing to
inquire as to whether good cause required substitution of counsel.4

¶16 On appeal, Hall does not claim that his trial counsel’s
uncommunicativeness deprived him of his Sixth Amendment right
to counsel. But he does claim that his counsel’s failure to request a
jury instruction on self‐defense did. Accordingly, we move on to
his self‐defense claim.

II. The Absence of a Self‐Defense Instruction Was Harmless.

¶17 Hall contends that he was unlawfully denied a jury
instruction on self‐defense. He frames this issue three ways,
arguing (1) that the trial court committed plain error by not sua
sponte giving the instruction, (2) that his trial counsel performed
ineffectively by failing to request the instruction, and (3) that the

4. A claim of ineffective assistance need not necessarily wait for an
appeal. A defendant who believes his trial counsel was ineffective
could request substitute counsel for the purpose of filing a motion
for a new trial on that ground. Where a claim depends on extra‐
record facts, raising it in a post‐trial motion would allow the trial
court to find the relevant facts. Also, the defendant will still enjoy
the benefit of appointed counsel at that stage, unlike most post‐
conviction proceedings. See generally Post‐Conviction Remedies
Act, Utah Code Ann. §§ 78B‐9‐109, ‐202 (LexisNexis 2008);
Hutchings v. State, 2003 UT 52, ¶ 20, 84 P.3d 1150.

20100221‐CA 7 2013 UT App 4
 State v. Hall

court abused its discretion in denying his motion for a new trial
based on the absence of the instruction. The State responds that
Hall approved the jury instructions at trial. Thus, it argues, Hall’s
claims that the court erred must be rejected under the invited error
doctrine. In addition, the State argues that Hall has failed to
demonstrate ineffective assistance of counsel.

¶18 “When a criminal defendant requests a jury instruction
regarding a particular affirmative defense, the court is obligated to
give the instruction if evidence has been presented . . . that
provides any reasonable basis upon which a jury could conclude
that the affirmative defense applies . . . .” State v. Low, 2008 UT 58,
¶ 25, 192 P.3d 867 (citing State v. Knoll, 712 P.2d 211, 214 (Utah
1985)). “[T]o preserve an issue involving a jury instruction, the
objecting party must make an objection in the trial court, stating
distinctly the matter to which he objects and the ground of his
objection.” State v. Rudolph, 970 P.2d 1221, 1227 (Utah 1998)
(citation, emphasis, and internal quotation marks omitted).
Moreover, a “party who does not request a jury instruction cannot
later complain that it was not given,” except to avoid manifest
injustice. State v. Soules, 2012 UT App 238, ¶ 7, 286 P.3d 25.
“Manifest injustice is synonymous with the plain error standard
. . . .” State v. Jimenez, 2012 UT 41, ¶ 20, 284 P.3d 640. Plain error
requires a showing that “(i) [a]n error exists; (ii) the error should
have been obvious to the trial court; and (iii) the error is
harmful . . . .” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).

¶19 To establish ineffective assistance of counsel, a defendant
must show that (1) “counsel’s performance was deficient in that it
‘fell below an objective standard of reasonableness’” and (2)
“counsel’s performance was prejudicial in that ‘there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.’” Menzies
v. Galetka, 2006 UT 81, ¶ 87, 150 P.3d 480 (quoting Strickland v.
Washington, 466 U.S. 668, 688–89, 694 (1984)). “The prejudice test for
ineffective assistance of counsel claims is equivalent to the
harmfulness test applied in assessing plain error.” State v. Parker,

20100221‐CA 8 2013 UT App 4
 State v. Hall

2000 UT 51, ¶ 10, 4 P.3d 778. “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed.”
Strickland, 466 U.S. at 697.

¶20 We follow that course here. Hall claims that if the jury had
been instructed on self‐defense, “there is a reasonable likelihood
that the jury could have entertained a reasonable doubt as to
whether [Hall] acted in self‐defense—thus requiring acquittal.” The
State responds that, even if the instruction had been given, the jury
would not have acquitted Hall. This is so, the State maintains,
because the jury found that Hall had used force likely to produce
death or serious bodily injury, and even Hall does not claim that
such force was required to prevent death or serious bodily injury
under the circumstances of this case. We agree with the State.

¶21 The jury convicted Hall of aggravated assault.5 It could do
so only if it found that Hall had used “other means or force likely
to produce death or serious bodily injury.”6 See Utah Code Ann.
§ 76‐5‐103(1)(b) (LexisNexis 2008). Under Utah law, a person may
use force likely to cause death or serious bodily injury only when
he reasonably believes it necessary to prevent death or serious
bodily injury:

[A] person is justified in using force
intended or likely to cause death or
serious bodily injury only if he or she
reasonably believes that force is
necessary to prevent death or serious

5. The jury apparently rejected Hall’s defense theory that Owner
attacked Hall, that Owner’s own momentum caused him to
“impact[] the wall facial[ly],” and that Owner’s injuries were
therefore largely self‐inflicted.

6. Hall does not challenge this finding on appeal or contend that it
was somehow tainted by the lack of a self‐defense instruction.

20100221‐CA 9 2013 UT App 4
 State v. Hall

bodily injury to himself or a third
person as a result of the other’s
imminent use of unlawful force, or to
prevent the commission of a forcible
felony.

Utah Code Ann. § 76‐2‐402(1) (LexisNexis 2008). Thus, Hall’s use
of force could qualify as self‐defense only if he reasonably believed
it was necessary to prevent death or serious bodily injury. But Hall
presented no evidence that would support a finding that he
believed—reasonably or otherwise—that his use of force was
necessary to prevent death or serious bodily injury. According to
Hall’s testimony, Owner had previously issued oral threats of
serious bodily harm or death, Owner waved his hands near Hall,
and Owner shoved and slapped Hall. This is not a description of
imminent force reasonably likely to cause death or serious bodily
injury. Indeed, on appeal, even in the face of the State’s challenge
to identify any evidence capable of supporting a finding that Hall’s
use of force was necessary to prevent death or serious bodily
injury, he points to none.

¶22 Consequently, the trial evidence, even viewed in the light
most favorable to Hall, could not have created a reasonable doubt
based on the theory that Hall acted in self‐defense under Utah
Code section 76‐2‐402(1). Accordingly, Hall has not demonstrated
a reasonable probability that the trial outcome would have differed
had the instruction been given. It follows that his plain error and
ineffective assistance of counsel claims fail.

¶23 Further, we affirm the trial court’s denial of Hall’s motion
for a new trial based on the absence of a self‐defense instruction.
The trial court denied the motion on the ground that, given the
strength of the evidence against Hall at trial, any error was
harmless. As explained above, we agree with this conclusion,

20100221‐CA 10 2013 UT App 4
 State v. Hall

although we take a slightly different path to it.7 See Bailey v. Bayles,
2002 UT 58, ¶ 10, 52 P.3d 1158 (stating that an appellate court may
affirm the decision of the trial court on any ground apparent from
the record).

III. Hall Did Not Waive Counsel or Proceed Pro Se.

¶24 Finally, Hall contends that the trial court erred by failing to
obtain a knowing and intelligent waiver of his right to counsel
before allowing him to proceed pro se on his motion for a new trial.
Hall argues that his appointed counsel was “effectively allowed to
withdraw as counsel on the date of sentencing” when the trial
court ruled on his pro se motion for a new trial. The State responds
that the court had no duty to obtain a waiver of counsel before
considering Hall’s pro se new trial motion, because Hall was in fact
represented at the time. Again, we agree with the State.

¶25 Under both the United States and Utah Constitutions, a
criminal defendant has the right to assistance of counsel. See U.S.
Const. amend. VI; Utah Const. art. I, § 12. “Concomitant with that
right is the criminal defendant’s guaranteed right to elect to present
his own defense.” State v. Hassan, 2004 UT 99, ¶ 21, 108 P.3d 695
(citing Utah Code Ann. § 77‐1‐6(1)(a); Faretta v. California, 422 U.S.
806, 818–21 (1975)). “It is the solemn duty of the trial court to
balance these dual guarantees by ensuring that the defendant is
exercising his right to self‐representation voluntarily, knowingly,
and intelligently,” id., before he exercises his right to “waive [his]
right to the assistance of counsel and proceed pro se.” State v.
Pedockie, 2006 UT 28, ¶ 26, 137 P.3d 716.

7. Because we conclude that any error in omitting the self‐defense
instruction was harmless, we need not reach the State’s arguments
that the error was invited and that the exception to the waiver
doctrine recognized in State v. Belgard, 830 P.2d 264, 266 (Utah
1992) (per curiam), and State v. Matsamas, 808 P.2d 1048, 1053 (Utah
1991), should not extend to invited errors.

20100221‐CA 11 2013 UT App 4
 State v. Hall

¶26 Here, however, Hall did not present his own defense, waive
his right to the assistance of counsel, or proceed pro se. Both at trial
and at sentencing Hall was indisputably represented by counsel.
After sentencing, Hall did file two pro se motions: a motion to
proceed pro se and a motion for a new trial. The trial court did not
rule on the motion to proceed pro se, and Hall does not challenge
this omission on appeal. The trial court denied the pro se motion
for a new trial. In so doing, Hall contends, the trial court effectively
permitted him to proceed pro se without the required safeguards.

¶27 Though creative, Hall’s argument is unpersuasive. He cites
no authority for the proposition that denial of a pro se motion
transforms a represented defendant into a pro se defendant. In fact,
the most accurate description of what happened here is that the
trial court denied a pro se motion from a represented defendant.8
Moreover, any possible error was harmless. As shown above, even
as reformulated by experienced appellate counsel, Hall’s self‐
defense argument cannot overcome the unchallenged jury finding
on deadly force.

CONCLUSION

¶28 We affirm on all issues. The trial court had no Pursifell duty
to inquire into Hall’s post‐sentencing expression of dissatisfaction
with counsel; the sole remedy available to him at that point was an
ineffective assistance of counsel claim. Furthermore, in light of the
jury finding on deadly force, Hall has not demonstrated that the

8. The court probably should not have considered the motion at all.
“‘When a defendant is represented by counsel, he generally has no
authority to file pro se motions, and the court should not consider
them.’” State v. Wareham, 2006 UT App 327, ¶ 33, 143 P.3d 302
(quoting with approval People v. Serio, 830 N.E.2d 749, 757 (Ill. App.
Ct. 2005)). “The only exception to this rule is that a defendant may
file a pro se motion to disqualify his appointed counsel.” Id.

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 State v. Hall

omission of a self‐defense instruction prejudiced him. Finally,
because Hall was represented at trial, at sentencing, and at the time
he filed his pro se motion for a new trial, the trial court had no duty
to obtain his knowing and intelligent waiver of his right to counsel.

¶29 Affirmed.

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