Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D19-57 _____________________________ TYLER ANDREW BEALL, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Santa Rosa County. John F. Simon, Jr., Judge. April 15, 2020 JAY, J. In this direct criminal appeal, Tyler Andrew Beall (“Appellant”) raises two points in arguing for reversal of his judgments and sentences. We affirm in all respects and write only to address Beall’s claim that he was denied his right to effective assistance of counsel when the trial court rejected his attorney’s motion to withdraw. I. Appellant was charged by Amended Information with seven criminal counts: Count 1 – Burglary of a Dwelling with Assault or Battery; Count 2 – Kidnapping; Count 3 – Aggravated Assault by Threat with a Deadly Weapon; Count 4 – Aggravated Battery on a Pregnant Person; Counts 5 and 6 – False Imprisonment of a Child Under 13 Years of Age; and Count 7 – Resisting an Officer Without Violence. The charges arose from an encounter on January 28, 2018, between Appellant and his former girlfriend, A.L., and A.L.’s two minor daughters. Appellant allegedly entered A.L.’s home without her permission and, armed with a knife, prevented her and her daughters from leaving, threatened and beat the pregnant A.L., and used A.L. as a human shield to protect himself when the police and the SWAT team arrived. A. Initially, a public defender was appointed to represent Appellant. On May 3, 2018, his public defender filed a notice that Appellant had requested a Nelson 1 hearing due to his dissatisfaction with appointed counsel, whom he accused of “railroading” him and rendering “careless” ineffective legal assistance. Apparently, in lieu of a hearing, the Office of the Public Defender was granted leave to withdraw from its representation of Appellant, whose representation was then assumed by Robert Thompson of the Office of Regional Conflict Counsel. Appellant’s trial was set for June 5, 2018, but defense continuances were requested and granted, and that date came and went without a trial. Discovery resumed throughout the summer when the amended information was filed by the State. In August, Appellant filed another motion for a Nelson hearing, this time directed at Mr. Thompson’s allegedly inadequate representation and, in addition, claiming a conflict of interest between the two. The trial court denied the motion after a hearing, finding that Mr. Thompson had rendered effective legal assistance. Nonetheless, still dissatisfied with counsel, Appellant sought a second Nelson hearing on October 15, 2018. The trial court again denied the motion, but this time it conducted a Faretta 2 inquiry, at the conclusion of which the court permitted Appellant to represent himself, and appointed Mr. Thompson as standby counsel. 1 Nelson v. State, 274 So. 2d 256 (Fla. 4th DCA 1973). 2 Faretta v. California, 422 U.S. 806 (1975). 2 Shortly afterwards, at a hearing on October 29, 2018—just prior to jury selection—Appellant, in his newfound capacity as his own attorney, announced that he had drafted multiple motions for the court to hear, including a motion to suppress. Mr. Thompson also addressed the court, asking that his status as standby counsel be explained, since it was the first time he had been placed in that role. The trial court informed them both that, as standby counsel, Mr. Thompson was not obliged to advise Appellant on how to try the case, but he would step in as counsel if and when Appellant decided he no longer wished to represent himself. After the division of responsibilities was clarified, Appellant argued, unsuccessfully, his various motions. In one of the motions, Appellant asked for a continuance, claiming he had not received all of the evidence against him, due primarily to his having taken over his own defense. He also asserted that Mr. Thompson had rendered “insufficient counsel,” and advised the trial court that he had submitted a complaint to The Florida Bar based on counsel’s insufficient representation. With that, the trial court swore in Mr. Thompson to have him respond to Appellant’s allegations. Mr. Thompson advised the court that he did not know if the filing of a bar complaint, on its own, caused a conflict of interest, but stated that he would try to do everything in his power to assist Appellant in his defense, even though he had just been labeled ineffective. Appellant went on to argue various other grounds for his motion for continuance—also based on alleged omissions by counsel—but the trial court reminded Appellant that it had already found Mr. Thompson effective at the earlier Nelson hearing on Thursday, when it had advised Appellant that if he elected to represent himself, he would need to be prepared for trial the following Monday. The trial court expressed its frustration that the case had already been set for trial in June, and that all parties had been noticed that the case would be tried on October 29. The judge announced that he “had a feeling this was going to happen” and perceptively observed: “Frankly, I think this is a delay tactic.” Nevertheless, the court permitted Appellant to list his complaints against Mr. Thompson, who responded that much of what Appellant was claiming should be pursued would be “devastating” to Appellant’s defense. 3 Ultimately, the trial court denied Appellant’s motion for continuance and started to conduct a second Faretta inquiry. Appellant, however, grudgingly admitted that since he had not had “sufficient time to prepare for this trial or do anything,” he felt that “it would probably be in [his] best interest” for the court to appoint counsel to represent him. Accordingly, the trial court re-appointed Mr. Thompson. Noticing that Appellant was still in “a jumpsuit,” the trial court called a recess to allow Appellant to change into appropriate attire and to speak to Mr. Thompson. Unfortunately, the attorney- client truce was short-lived. Just before jury selection, the trial court announced it had been advised by Mr. Thompson that Appellant “may have engaged in some inappropriate contact with him while he was meeting with [Appellant] in preparation for jury selection.” Mr. Thompson explained that when he was reviewing the process of jury selection with Appellant, Appellant began to recount “all the ways” he was unhappy with Thompson. Appellant referenced former clients that Mr. Thompson had represented “and essentially said that he was not going to be treated the same way” as the others allegedly had been treated. According to Mr. Thompson, at one point during the ensuing conversation, Appellant said to him, “‘I’d be – I’d be wrong if I went off on you.’” Thompson ignored the comment and attempted to refocus on jury selection, but Appellant “circled the conversation back around and said, ‘I’d be dead wrong if I went off on you here. I’d be dead wrong if I went off on you in the courtroom.’” Justifiably shaken, Mr. Thompson understood that remark to be a threat against him. He also informed the court that during the recess, he confirmed that Appellant had, in fact, mailed off a complaint against him to The Florida Bar. Mr. Thompson said that he had discussed the matter with his supervisor and they agreed that he, Thompson, should move to withdraw. Appellant responded by accusing Mr. Thompson of brushing him off, as he had allegedly done to two other inmates in Appellant’s “pod” at the jail, and announced that those two defendants had received life sentences. Appellant emphasized that he, too, was facing a life sentence and accused Mr. Thompson of doing nothing for his defense. 4 The trial court patiently explained that while he was entitled to appointed counsel, Appellant was not entitled to choose who would represent him. Taking a sterner tone, the court then stated: “Well, a defendant cannot run the court system by simply threatening their attorney, if that’s what you did, and then him saying, ‘Oh, I want to get off the case.’ That’s not how it works. . . . You all don’t run how this works.” As far as the bar complaint was concerned, the court stressed that it had only just been filed—not resolved—and “[i]f [the court] were to allow [counsel] to be removed because of that, then every inmate potentially could file a bar complaint against their attorney, and we would never get to trial on the case.” Accordingly, the trial court denied Appellant’s motion for a continuance and counsel’s motion to withdraw, and announced it was time to choose the jury. Afterwards, Appellant continued to complain about the lack of quality of his legal representation. When the trial court asked him if he was satisfied with the jury that was chosen, Appellant replied that he was, but he wanted to state for “the record” that no one had explained the jury selection process to him beforehand. The trial court heard him out, but assured Appellant that Mr. Thompson had “picked plenty of juries.” B. On the day set for presentation of the case to the jury, Appellant renewed his invective against his attorney, accusing him of not meeting with him at the jail. Mr. Thompson defended himself based on the threats Appellant had made against him during their last meeting, and assured the court that he had spent the intervening days preparing Appellant’s defense. The judge, expressing commendable judicial restraint, once again reminded Appellant that he had elected to have Mr. Thompson represent him, but then warned: “[A]s I indicated before, you cannot create a conflict in order to get an attorney off your case. It’s that simple, otherwise everybody would do it, so the Court’s already heard that. We’re moving forward.” As events unfolded, however, it was clear that Appellant had no intention of compliantly “moving forward.” 5 The first disruption arose at the conclusion of Mr. Thompson’s opening statement. Appellant stood up and unleashed a caustic assault on Mr. Thompson’s effectiveness, blatantly ignoring the trial court’s repeated orders that he desist and sit down. Correctly, the court directed the bailiff to remove the jury. Once the jury was out of the courtroom, the trial court and Appellant engaged in a heated exchange, with the court repeatedly emphasizing that it had found Mr. Thompson to be effective and advising Appellant that if he did not curb his aggression, he would be removed from the courtroom. The court again accused Appellant of trying to create a conflict, while Appellant denied that he was doing so. At that point in the proceedings, the judge left the bench for a brief moment. Not content with the latest disruption in front of the jury, while the judge was still out of the courtroom, Appellant loudly announced that he had called one of the jurors the previous evening. When the judge returned and was apprised of this development, he discussed the matter with the prosecutor and Mr. Thompson. It was decided that each juror would be polled individually. While the bailiff was preparing the jurors, the trial court asked Appellant if he wanted to represent himself. Appellant said that he did not. Once the jurors were polled, it was quickly determined which juror was called and, further, that the juror—though being able to see on caller identification that the call originated from the Santa Rosa County Jail—had heard only the briefest of sounds before the call was disconnected. At the court’s suggestion, the attorneys agreed that the best remedy would be to exchange the juror with the alternate juror, without either juror’s knowledge. Appellant’s trial resumed after a recess. Later, during another break, Mr. Thompson was given an opportunity to speak to Appellant concerning his choice to testify in his own defense. When the judge returned to the courtroom, Mr. Thompson informed him that “Mr. Beall politely reminded me of his general displeasure with the way I’ve represented him and has expressed to me that he feels ill prepared to testify, and so he does not wish to testify.” The trial court, diligently trying to accommodate Appellant’s defense, suggested that it would continue the trial until the next day so that Thompson could meet with Appellant to determine 6 whether Appellant really did want to testify. Appellant agreed to that suggestion. After meeting with Appellant that evening, Mr. Thompson announced—the next day—that Appellant had decided not to testify. Appellant was sworn in and the court conducted the requisite colloquy. It concluded that Appellant’s decision was made freely and voluntarily. C. Ultimately, the jury returned a verdict of guilty on each count. At the sentencing hearing, the trial court adjudicated Appellant guilty on all counts and designated him a Prison Releasee Reoffender (“PRR”). It then sentenced him to mandatory PRR life sentences on Counts 1 and 2. Additionally, it imposed a fifteen- year PRR sentence on the aggravated battery on a pregnant person count; five-year sentences for the aggravated assault and false imprisonment counts; and time served for the resisting without violence count. All sentences were to be served concurrently. This appeal followed. II. The United States Supreme Court has declared that a basic duty of a lawyer representing a criminal defendant is “[t]o assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest.” Strickland v. Washington, 466 U.S. 668, 688 (1984) (citation omitted). “[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” United States v. Cronic, 466 U.S. 648, 658 (1984). Thus, we take very seriously Appellant’s argument that the attorney-client relationship between himself and Mr. Thompson had been irretrievably broken, a claim made all the more significant—as Appellant repeatedly reminded the trial court—by the potential life sentences looming over him. However, our review of the record leads us to the conclusion that the gravity of Appellant’s situation was not lost on the trial court, and throughout the proceedings, it took painstaking steps to 7 address Appellant’s every complaint, despite Appellant’s obstinate behavior. The substance of Appellant’s argument is that the trial court ruled on counsel’s motion to withdraw based on its belief that Appellant was “playing games,” when it should have evaluated counsel’s irreconcilable differences with Appellant. By doing so, according to Appellant, the court denied him effective assistance of counsel. Specifically, Appellant argues that he was denied effective assistance of counsel due to the trial court’s refusal to permit his appointed counsel to withdraw, despite counsel’s representation that he and his office believed he should withdraw because of Appellant’s threats leveled against him—threats Appellant later denied making during one of the many colloquies conducted by the court. We disagree with Appellant’s legal premise that defense counsel is inevitably ineffective when a rift forms in the attorney- client relationship—in this case, caused by the defendant’s own behavior—forcing the attorney to cry foul and request permission to withdraw. Here, the record proves that the trial court evaluated Robert Thompson’s representation of Appellant from every conceivable angle and found it to be constitutionally effective. The court’s decision not to permit Mr. Thompson to withdraw was well within the trial court’s broad discretion and did not infringe on Appellant’s constitutional right to effective assistance of counsel. Appellant cites to Smith v. State, 156 So. 3d 1119 (Fla. 1st DCA 2015), for the general principle that “an active conflict of interest is necessarily ‘a conflict that affected counsel’s performance—as opposed to a mere theoretical division of loyalties.’” Id. at 1123 (quoting Mickens v. Taylor, 535 U.S. 162, 171 (2002)). In Smith, assistant public defenders from the same office represented two capital murder defendants in separate cases going to trial. In both cases, counsel moved to withdraw based on a concern that the defense of each client would be limited by a duty of loyalty owed to the other that would preclude divulging certain confidential, material information. The trial court denied both motions. By way of consolidated petitions for writs of certiorari, this Court was asked to review the trial court’s decisions. 8 We agreed with the public defender’s argument in both cases that the trial court’s finding of insufficient evidence to establish the existence of an actual conflict “increase[d] the burden on [the public defender’s] office beyond what section 27.5303(1)(a)[, Florida Statutes,] requires, by undermining the portion of that section precluding the trial court from ‘requiring the disclosure of any confidential communications.’” Id. We acknowledged that the Office of the Public Defender is “‘the functional equivalent [of] a law firm [where] [d]ifferent attorneys in the same public defender’s office cannot represent defendants with conflicting interests.’” Id. at 1123-24 (quoting Bouie v. State, 559 So. 2d 1113, 1115 (Fla. 1990)). Furthermore, we differentiated the concept of evaluating a conflict as affecting counsel’s performance pre-trial and post-trial. In analyzing the conflict pre-trial, we held the following standard applies: Even though this matter is in the pretrial stages and an actual conflict may yet not be apparent, the case is rife with the potential for such conflict. “In the murkier pre- trial context when relationships between parties are seen through a glass, darkly,” the court is accorded broad discretion in determining whether the potential for conflict exists. Id. at 1123 (first emphasis added) (quoting Kolker v. State, 649 So. 2d 250, 251-52 (Fla. 3d DCA 1994)). But the instant case does not raise the specter of the public defender’s ethical duty to avoid an alleged conflict of interest with another public defender’s client in the same office. See Smith, 156 So. 3d at 1124. Unlike the circumstances in Smith, in the present case, there was no privileged or confidential information to be protected; no ethical duty potentially breached. Instead, this case boils down to a disrespectful and disorderly defendant who, at every stage of the proceedings, attempted to force the trial court to declare counsel ineffective. The court conducted full evidentiary hearings; there was no “murkiness” from “seeing through a glass, darkly” in this case. Appellant’s contemptuous conduct was crystal clear for all to see (and hear). The trial court was well aware that counsel was fully prepared to try the case, and it was only 9 Appellant’s bad behavior that hindered the case from moving forward. A case directly on point is Fondura v. State, 940 So. 2d 489 (Fla. 3d DCA 2006). In that case, the Third District emphasized that “[a] trial court’s main objective is to sustain the orderly administration of justice.” Id. at 491. Further, the Third District cited principles that markedly dovetail with our present decision. After endorsing a trial court’s “main objective,” the Third District continued: In Wilson v. State, 753 So. 2d 683 (Fla. 3d DCA 2000), this Court stated that “[a]s long as the trial court has a reasonable basis for believing that the attorney-client relation has not deteriorated to a point where counsel can no longer give effective aid in the fair presentation of a defense, the court is justified in denying a motion to withdraw.” Id. at 688. Id. The facts in Fondura are comparable to those in the instant case. While awaiting trial, Fondura filed a request for a Nelson hearing and moved to discharge his counsel. According to the Third District: The court determined that counsel was effective and denied the motion. Fondura then filed a Florida Bar complaint against his attorney. Counsel responded by filing a certification of conflict of interest. The court denied these attempts to appoint new counsel. Fondura then left threatening messages on counsel’s answering machine. Counsel subsequently asked the court for a continuance so a more experienced lawyer could help with the trial. The court denied this motion and set a court date. Id. at 490. “At his competency hearing, Fondura was uncooperative and disruptive.” Id. When the doctor found him competent to proceed, Fondura, having somehow managed to conceal a razorblade on his person, pulled it out and attempted to wound himself. Id. 10 After Fondura was removed from the courtroom and transported back to jail, a second doctor evaluated him and found him competent to stand trial. Defense counsel, yet again, moved to withdraw from representation, stating he feared for his safety. The trial court denied his motion, expressing its irritation with counsel and blaming him for the inordinate delay in the trial. Once the trial commenced, pursuant to defense counsel’s motion, the trial court ordered Fondura confined to a wheelchair with handcuffs and leg shackles. Yet confinement did nothing to moderate Fondura’s incessant demand that he not appear in court. To press the point, he belligerently threatened to continue to act out if brought into the courtroom. Id. at 491. True to his word, when Fondura appeared in court for purposes of identification following the testimony of the State’s DNA expert, he turned to the jurors and announced that he neither asked for, nor approved of, his attorney. Fondura was then removed from the courtroom. Id. Fondura’s extreme behavior at trial rivaled and, perhaps, exceeded Appellant’s own. But, importantly, the Third District emphasized that, notwithstanding Fondura’s outrageous courtroom conduct, the trial court found defense counsel to be effective. Even more, the Third District determined “there was no hint that a change in counsel would actually change Fondura’s behavior,” and concluded that “[h]ad the court permitted counsel to withdraw, this would have further delayed the trial and a change of counsel may have had no effect on Fondura’s behavior.” Id. Appellant claims that the excessive time delay and its prejudice to the aging victim was the lynchpin of the Third District’s decision, noting that only ten months had passed from the time he was charged to the time the trial court denied counsel’s motion to withdraw and Appellant’s motion for a continuance. The Third District did not speak in such narrow terms when it concluded that Fondura attempted to delay his trial or cause a mistrial, and the court properly denied the motions. The court not only acted well within its discretion, but it demonstrated an abundance of patience in light of Fondura’s disruptive, 11 uncooperative, potentially dangerous, and outrageous antics. Id. at 492; see also People v. Johnson, 432 P.3d 536, 559 (Cal. 2018) (holding, in a capital murder trial, that the defendant’s attack on appointed counsel and subsequent threats against counsel’s family did not create a conflict of interest which obligated the trial court to discharge counsel; the court inquired about the potential conflict and counsel noted that he had represented difficult clients before and then assured the court the attack would not impair his ability to represent the defendant, stating that he believed he could represent the defendant “with equal vigor as if this had never happened”). Consistent with the above cases, where a trial court finds that a defendant’s behavior was knowingly obstructive, that finding should weigh heavily against any claim that the attorney-client relationship has diminished to such an extent that counsel is no longer effective. Here, the trial court was consistent in its warnings that Appellant could not force a continuance by threatening his attorney—whom the court repeatedly found to be effective—and provoke defense counsel to move to withdraw. Moreover, there was no evidence of a total breakdown in communication between Appellant and his attorney, despite Appellant’s concerted efforts to derail the trial. III. Accordingly, we hold that the trial court did not abuse its broad discretion in denying Appellant’s defense attorney’s motion to withdraw. In doing so, we find that the trial court did not deny Appellant his constitutional right to effective assistance of counsel. Appellant’s judgments and sentences are therefore AFFIRMED. KELSEY and TANENBAUM, JJ., concur. 12 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Sharon S. Traxler, Assistant Attorney General, Tallahassee, for Appellee. 13