                                                                                                                    FILED
                                                                                                            COURT    OF APPEALS
                                                                                                                  DIVISION 1

                                                                                                          Z0I5JAN 21 . At 9: 05

                                                                                                           STAT

                                                                                                           BY




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

 STATE OF WASHINGTON                                                                  No. 44816 -5 -II


                                         Respondent,


         v.



 JASON EVERETT GAMBILL,                                                      UNPUBLISHED OPINION


                                         Appellant.


        JOHANSON, C. J. —          Jason Gambill appeals from his conviction for possession of a stolen


motor vehicle.   He    argues     that the trial   court   infringed   on   his   right   to   counsel.   Because the trial


court abused its discretion by failing to make an adequate inquiry before denying Gambill' s request

for substitute counsel, we reverse and remand for a new trial.'




1 Gambill also claims trial error relating to prosecutorial misconduct, improper opinion testimony,
and   infringement   of   the   presumption of     innocence. Because we reverse on other grounds, we do
not reach these trial- related issues. However, Gambill also argues for the first time on appeal that
he was unlawfully seized. Because we reverse and remand for a new trial, Gambill may raise the
unlawful seizure     issue   pretrial.
No. 44816 -5 -II



                                 FACTS AND PROCEDURAL HISTORY


         On March 7, 2013, Selma Alsalman'                   s   car    was    stolen.    Early the following morning,

Gambill    was    seen   driving it. Trooper Todd Thornburg contacted Gambill and took him into

custody. Gambill was charged with possession of a stolen vehicle.

         The trial court found Gambill indigent and appointed David Brown to represent him.


Gambill    and   Brown had    a strained      relationship. Two weeks before trial, Gambill requested new


counsel in a hearing not reflected in the record. At a plea hearing one week before trial, Gambill

again requested new counsel for reasons articulated in a letter that he had sent but the trial court


had not yet received. The trial court told Gambill that it would consider his request for new counsel

when it received the letter.


         On April 18, 2013, the trial court reviewed Gambill' s letter and held a trial confirmation


hearing.       Gambill      accused       Brown      of "   inadaquit [        sic]    representation,   and    insufficient


representation,"    making "[    v] ulgar refference [ sic]"           to him, making "[ d] istruthful [ sic]" actions in



court, violating his constitutional rights, and threatening him and his family. Clerk' s Papers at 21.

The trial court asked Brown if the attorney -client relationship had deteriorated to the point where

Brown could not represent Gambill. Brown replied that Gambill was not speaking to him and that

caused   him     concern.   Without conducting further inquiry, the trial court declined to grant new

counsel, noting that the      charge was "         fairly   straightforward"          and that the letter had only raised

 conclusory      accusations."     Report     of   Proceedings ( RP) ( Apr. 18, 2013)           at   6. The trial court did


not address    Gambill    except   to "   suggest ...   that [ he]     start   communicating    with [ his]   attorney." RP


 Apr. 18, 2013) at 6.




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No. 44816 -5 -II



         On the morning           of   trial, Gambill    was still not satisfied with    Brown' s      representation.   He


complained that het had not had the opportunity to review the police reports with Brown, while

Brown insisted that they had reviewed the reports together " half a dozen times. "2 RP ( Apr. 22,
2013)   at   9.   Gambill further claimed that he did not understand the charges against him and that

Brown had threatened him. He then told the court that


          Brown] told me I was stupid, told me I was crazy one time, told me I was going to
         get hurt also another time and I don' t know, I don' t feel safe being represented by
         him. It' s my life on the line here.

RP ( Apr. 22, 2013)         at   13.    The trial judge3 responded that Gambill' s claims were unbelievable


because the judge knew Brown well and Brown would not act in the way Gambill had described.

The trial court then offered Gambill a recess of an hour and a half in order to speak with Brown.

Gambill was still unsatisfied, and the following exchange occurred:

                    MR. GAMBILL: And [Brown has] accused me of committing crimes I' m
         not      even aware       of, never     heard    of   in my life.   I don' t understand how this is
         representation of me and my defense, my life --
                THE COURT: Maybe if you quit talking and listen to him he can .answer
         those questions for you. But you have to listen to what he says.


RP ( Apr. 22, 2013) at 15.


         The      court   took its     recess,   and   Gambill did      not speak   any further   on   the   record.   At the


following trial, Brown made no opening statement and presented no evidence.4 Of the State' s



2 The record is not clear what kind of reports Gambill and Brown were referring to, but Gambill' s
brief indicates that they were referring to the police report and information.

3 The trial judge was different than the judge who handled the trial confirmation hearing.

  At the     beginning     of    trial, Brown    stated   that he     would reserve   his opening. However, he never
gave an opening.



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No. 44816 -5 -II



seven witnesses,        Brown       cross -examined     two:   Alsalman       and   Trooper   Thornburg. A jury found

Gambill guilty of possession of a stolen motor vehicle. Gambill appeals.

                                                         ANALYSIS


           Gambill argues that when he asked for new counsel, the trial court was required to inquire

into the    reason   for his    request    using "`   specific and    targeted    questions.'"   Br. of Appellant at 11


 quoting United States         v.   Adelzo- Gonzalez, 268 F. 3d 772, 776 -77 ( 9th Cir. 2001)).          He argues that


the relationship between himself and Brown completely collapsed and that the Sixth Amendment

required    the trial   court    to   appoint new counsel, regardless of prejudice.              Br. of Appellant at 10


 citing State   v.   Cross, 156 Wn.2d 580, 607, 132 P. 3d 80,             cert.     denied, 549 U.S. 1022 ( 2006)). The


State concedes that " there was some type of breakdown" in the attorney -client relationship. Br. of

Resp' t at 8. However, the State argues that Gambill' s request for new counsel was not timely and

that Gambill' s claims were a " preposterous" attempt to " delay his trial by making wild accusations

of absurd conflicts with         his attorney."       Br. of Resp' t at 8 -9.

           We conclude that the trial court abused its discretion by failing to adequately inquire into

the   nature    and     extent      of   the   attorney- client   conflict.     Accordingly,     we reverse Gambill' s


conviction.



                                                  A. STANDARD OF REVIEW


           We review a denial of right to counsel de novo, though we accord appropriate deference to

the trial court' s determinations of underlying facts. Cross, 156 Wn.2d at 605. We generally review

trial court decisions relating to the trial court' s refusal to appoint new counsel for abuse of

discretion. Cross, 156 Wn.2d at 607.




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No. 44816 -5 -II



                                                B. ADEQUACY OF INQUIRY


         The Sixth Amendment                ensures a     defendant'        s right   to   counsel.     U.S. CONST. amend. VI.


This   right   has   substantial      implications for the attorney -client relationship.                 When the relationship

between lawyer and client completely collapses, the refusal to substitute new counsel violates the

defendant'     s right   to    effective assistance of counsel, even              if   no actual prejudice        is   shown.   In re


Pers. Restraint ofStenson, 142 Wn.2d 710, 722, 16 P.3d 1 ( 2001).

         When reviewing           a   trial court' s   refusal   to   appoint new counsel, we consider "`(              1) the extent


of the conflict, (2) the adequacy of the [trial court' s] inquiry, and (3) the timeliness of the motion.'"

Cross, 156 Wn.2d          at   607 ( alteration in     original) ( quoting       Stenson, 142 Wn.2d          at   724). Where the


defendant requests the appointment of new counsel, the trial court must have a sufficient basis for


reaching       an   informed decision.          Adelzo- Gonzalez, 268 F.3d                  at   777.    The trial court has the


obligation to inquire thoroughly into the factual basis of the defendant' s dissatisfaction. State v.

Schaller, 143 Wn.         App.    258, 271, 177 P. 3d 1139 ( 2007), review denied, 164 Wn.2d 1015 ( 2008).


Failure to make an adequate inquiry is an abuse of discretion. United States v. Lott, 310 F. 3d 1231,

1248 -50 ( 10th Cir. 2002), cert. denied, 538 U.S. 936 ( 2003).


         Here,       Gambill'     s   substitution      request       was    fairly    detailed.        It contained     allegations


concerning inadequate representation as well as allegations that the attorney had made threats to

Gambill and his family. But the trial court characterized the request as containing only " conclusory

accusations."        RP ( Apr. 18, 2013) at 6. Even so, Gambill' s request informed the trial court of the

existence of a       potentially       serious conflict.     Knowledge of a conflict alone is insufficient for the


court to determine whether Gambill and Brown could work together to present an adequate




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No. 44816 -5 -II



defense. But if the substitution request does not contain sufficient detail to determine the extent


of the conflict, the trial court has a duty to investigate further and to inquire carefully.

            While the trial court heard limited comments from Brown and Gambill, it did not conduct


a serious investigation into the nature of the attorney -client conflict. The trial court did not perform

a   detailed    inquiry    into Gambill' s       allegations.       Instead, the trial court summarily dismissed

Gambill' s claims without analysis at the trial confirmation hearing and on the morning of trial. RP

 Apr. 18, 2013)       at   6 ( " I' m   not   granting    new counsel       at   this   point.   It appears this is a fairly

straightforward charge....              All I have ...    is conclusory     accusations. ");     RP ( Apr. 22, 2013) at 14


    Here'   s where we' re      going to leave this, Mr. Gambill:                I have known Mr. Brown for a lot of


years....      The things you are alleging, frankly, are unbelievable. ").

            In addition to inquiring about the adequacy of the trial preparation, the trial court should

have investigated the threats             and name       calling that Gambill       alleges occurred.     Instead, the trial


court relied     solely   on   his   personal opinion of counsel       to dismiss Gambill'          s claims.   Accordingly,

the court failed to inform itself of the facts on which to exercise its discretion.

                                                 C. EXTENT OF CONFLICT


            When the " relationship between lawyer               and client       completely     collapses,"    the trial court



must substitute new counsel in order to comply with the defendant' s Sixth Amendment right to

effective assistance of counsel.              Stenson, 142 Wn.2d       at   722. In this case, the trial court' s failure


to adequately investigate the breakdown of Gambill and Brown' s relationship means that we do

not know the true extent of the breakdown nor the details of what caused the breakdown with


certainty.     But the breakdown appears comprehensive and extended well beyond a disagreement

of mere      trial strategy.    The record as described above shows the strong likelihood of a complete


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No. 44816 -5 -II



collapse of the attorney -client relationship. In such a circumstance, in the absence of an adequate

inquiry into the extent and the basis of the attorney- client conflict, we hold that Gambill need not

show a      complete collapse of the          lawyer -client relationship. 5      See Stenson, 142 Wn.2d at 722 (citing

United States v. Moore, 159 F. 3d 1154, 1158 ( 9th Cir. 1998)).

                                                            D. TIMELINESS


            A request for new counsel is not timely if it is made during trial or after significant voir

dire has     occurred. Cross, 156 Wn.2d                at   610 -11; Stenson, 142 Wn.2d    at   732. The purpose of this


rule is to prevent a defendant from unduly delaying the trial. State v. Fritz, 21 Wn. App. 354, 363-

65, 585 P. 2d 173 ( 1978), review denied, 92 Wn.2d 1002 ( 1979); Moore v. Calderon, 108 F. 3d 261,


264 ( 9th Cir.),      cert.   denied, 521 U.S. 1111 ( 1997).            On the other hand, a defendant' s request to


proceed pro se made 11 days before trial was timely. State v. DeWeese, 117 Wn.2d 369, 372 -73,

377, 816 P. 2d 1 ( 1991).


            Here, two weeks before trial, Gambill requested new counsel in a hearing not reflected in

the      record.   At a plea hearing one week before trial, Gambill again requested new counsel for

reasons articulated in a letter that he had sent from the jail but the trial court had not yet received.


On April 18, 2013, the trial court reviewed Gambill' s letter and held a trial confirmation hearing.

On the morning of trial, Gambill was still not satisfied with Brown' s representation and continued

to    request      new   counsel.        In addition, the charge of possession of a stolen vehicle was


straightforward and involved only one day of trial. In such a simple case as this, substitute counsel

would not require much time to prepare for trial and the substitution would not have unduly


5
    In   addition,   to the   extent   that   State   v.   Lopez, 79 Wn.   App.   755, 767, 904 P. 2d 1179 ( 1995), may
require a constitutional harmless error analysis, we disagree with that conclusion when the trial
court fails to make an adequate inquiry.
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No. 44816 -5 -II



delayed proceedings or otherwise " obstruct[ ed] the orderly course of the administration ofjustice."

Fritz, 21 Wn.   App.   at   365:   We conclude that Gambill' s request was timely.

         In conclusion, the trial court failed to conduct an adequate inquiry to fully inform itself

before denying Gambill' s motion for substitute counsel and overlooked strong and timely evidence

of a complete   breakdown in the attorney -client relationship. We hold that the trial court abused


its discretion by denying Gambill' s timely request for new counsel without an adequate inquiry.

Accordingly, we reverse the conviction, remand for appointment of new counsel and for a new

trial.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for.public record in accordance with RCW 2. 06.040,

it is so ordered.




 We concur:




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