Vreeland, II v. Archuleta et al
ORDER. ORDERED that the Application for a Writ of Habeas Corpus, Docket No. 8 , is denied and this case is dismissed with prejudice. ORDERED that there is no basis on which to issue a certificate of appealability. ORDERED that leave to proceed in fo rma pauperis on appeal is denied. The Court certifies pursuant to 28 U.S.C. ' 1915(a)(3) that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). If Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. Signed by Judge Philip A. Brimmer on 12/20/16. (jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02175-PAB
DELMART E. J. M. VREELAND, III,
DAVID ZUPAN, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER ON APPLICATION FOR
WRIT OF HABEAS CORPUS
Applicant Delmar E. J. M, Vreeland, III, filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. ' 2254 that challenges the validity of his criminal
conviction in Case No. 04CR706 in the District Court for Douglas County, Colorado.
Applicant originally filed the Application on August 6, 2014, but then, pursuant to the
August 11, 2014 Order to Amend, he filed an Amended Application, Docket No. 8, on
September 29, 2014. The September 29 Amended Application, which asserts thirty-two
claims, of which one has five subparts, is the operative pleading in this action.
On September 29, 2014, Magistrate Judge Gordon P. Gallagher directed
Respondents to file a Pre-Answer Response and to address the affirmative defenses of
timeliness under 28 U.S.C. § 2254(d), and exhaustion of state court remedies under 28
U.S.C. 2254(b)(1)(A), if Respondents intended to raise either or both in this action.
After granting both parties extensions of time, Respondents filed a Pre-Answer
Response and Applicant filed a Reply. Magistrate Judge Gallagher reviewed the
Response and Reply and directed Applicant to show cause why the action should not be
dismissed as a mixed petition. On March 4, 2015, counsel entered an appearance on
Applicant’s behalf and requested a ninety-day extension of time to respond to the Order
to Show Cause. Magistrate Judge Gallagher granted the request for an extension of
time, but allowed Applicant only sixty days to respond. Applicant filed a Response,
Docket No. 32, on May 1, 2015, and Respondents filed a Reply, Docket No. 34, on May
This Court, upon review of the Response to the Order to Show Cause and
Applicant’s Reply, filed an Order to Dismiss in Part and for Answer on December 21,
2015. See Docket No. 46. In the December 21 Order, the Court determined that
Claims Six through Nine, Eleven through Twenty-Six, subpart (a) of Twenty-Seven,
Twenty-Nine, and Thirty are procedurally barred from federal habeas review. Docket
No. 46 at 19. The Court further determined that Claims Four, Thirty-One, and Thirty-Two
are not cognizable in a federal habeas action, and subparts (b)-(e) of Claim
Twenty-Seven and Claim Twenty-Eight are unexhausted. Id.
The remaining claims are as follows:
1) Trial court forced Applicant to jury trial without counsel and
notification in violation of Sixth Amendment;
2) Trial court forced Applicant to trial without counsel even
though Applicant was incompetent violating due process
3) Trial court denied a competency hearing violating due
5) Jury instructions did not include the date and location of the
crime violating due process rights; and
10) Trial court failed to limit the use of certain evidence under
“CRE 404(B) and C.R.S. § 16-10-301” by the jury regarding
the age of state witnesses, [J.O. and L.A.] 1, and when they
first met Applicant in violation of the Sixth and Fourteenth
Docket No. 8 at 14-16, 20.
Respondents then were directed to file an answer that fully addresses the merits of
Claims One through Three, Five, and Ten. Id. at 20. Respondents requested an
extension of time to file an answer, which was granted. Prior to Respondents filing an
answer, Applicant filed a Motion to Amend or Reconsider Ruling. See Docket No. 53.
In the Motion to Amend or Reconsider, Applicant requests that the Court alter, amend, or
reconsider the December 21 ruling and allow Applicant to litigate his actual innocence
claim “in conjunction with his claims that he was forced to trial without counsel, and while
incompetent, in violation of his Sixth Amendment rights” in this action. See Docket No.
53 at 7-8. Respondents filed a Response to Motion to Reconsider, Docket No. 55, on
January 25, 2016, and Applicant filed a Reply to State’s Response to Motion to Amend or
Reconsider, Docket No. 59, on February 8, 2016.
Subsequently, Respondents filed an Answer on February 16, 2016, addressing
the merits of Claims One through Three, Five, and Ten. Docket No. 60. Applicant filed
a Reply to the Answer, Docket No. 65, on March 31, 2016, and an Amended Reply,
Docket No. 68, on April 21, 2016. The case was stayed from March 16, 2016 until May 2,
2016 because Applicant appealed this Court’s denial of his request for bail and the state
The Court refers to alleged victims of sexual assaults by their initials in this Order.
court records were not available to this Court until the Tenth Circuit returned the records
following the disposition of Applicant’s appeal. The Court, on September 9, 2016,
denied the Motion to Amend or Reconsider Ruling.
The factual background of Applicant=s crimes and convictions is summarized in the
opinion of the Colorado Court of Appeals (CCA), addressing his direct appeal as follows:
Defendant, Delmart Michael Edward Vreeland, appeals the
judgment of conviction entered upon jury verdicts finding him guilty of
inducement of child prostitution, solicitation of child prostitution, sexual
exploitation of children, sexual assault, contributing to the delinquency of a
minor, and distribution of a controlled substance.
Defendant promised to pay two teenage boys if they allowed him to
photograph them in their underwear and post the photographs on a
pornographic website. After providing the teenagers with alcohol and
cocaine, defendant took photographs of the boys and sexually assaulted
Docket No. 17-2 at 2.
A. Standard of Review
Title 28 U.S.C. ' 2254(d) provides that a writ of habeas corpus may not be issued
with respect to any claim that was adjudicated on the merits in state court unless the state
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. ' 2254(d). Applicant bears the burden of proof under ' 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
A claim may be adjudicated on the merits in state court even in the absence of a
statement of reasons by the state court for rejecting the claim. Harrington v. Richter, 562
U.S. 86, 98 (2011). In particular, Adetermining whether a state court=s decision resulted
from an unreasonable legal or factual conclusion does not require that there be an
opinion from the state court explaining the state court=s reasoning.@ Id. (collecting
cases). Thus, A[w]hen a federal claim has been presented to a state court and the state
court has denied relief, it may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law procedural principles to the
contrary.@ Id. at 99. AWhere there has been one reasoned state judgment rejecting a
federal claim,@ federal habeas courts should presume that Alater unexplained orders
upholding that judgment or rejecting the same claim rest upon the same ground.@ Ylst v.
Nunnemaker, 501 U.S. 797, 803 (1991).
Even A[w]here a state court=s decision is unaccompanied by an explanation, the
habeas petitioner=s burden still must be met by showing there was no reasonable basis
for the state court to deny relief.@ Id. at 98. In other words, the Court Aowe[s] deference
to the state court=s result, even if its reasoning is not expressly stated.@ Aycox v. Lytle,
196 F.3d 1174, 1177 (10th Cir. 1999). Therefore, this Court Amust uphold the state
court=s summary decision unless [the Court=s] independent review of the record and
pertinent federal law persuades [the Court] that its result contravenes or unreasonably
applies clearly established federal law, or is based on an unreasonable determination of
the facts in light of the evidence presented.@ Id. at 1178. A[T]his >independent review=
should be distinguished from a full de novo review of the petitioner=s claims.@ Id.
The Court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. ' 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir.
2003). The threshold question the Court must answer under ' 2254(d)(1) is whether
Applicant seeks to apply a rule of law that was clearly established by the Supreme Court
at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390
(2000). Clearly established federal law Arefers to the holdings, as opposed to the dicta,
of [the Supreme] Court=s decisions as of the time of the relevant state-court decision.@
Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in
cases where the facts are at least closely-related or similar to
the case sub judice. Although the legal rule at issue need not
have had its genesis in the closely-related or similar factual
context, the Supreme Court must have expressly extended
the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established
federal law, that is the end of the Court=s inquiry pursuant to ' 2254(d)(1). See id. at
If a clearly established rule of federal law is implicated, the Court must determine
whether the state court=s decision was contrary to or an unreasonable application of that
clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
A state-court decision is contrary to clearly established
federal law if: (a) Athe state court applies a rule that
contradicts the governing law set forth in Supreme Court
cases@; or (b) Athe state court confronts a set of facts that are
materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from [that]
precedent.@ Maynard [v. Boone], 468 F.3d [665,] 669 [(10th
Cir. 2006)] (internal quotation marks and brackets omitted)
(quoting Williams, 529 U.S. at 405). AThe word >contrary= is
commonly understood to mean >diametrically different,=
>opposite in character or nature,= or >mutually opposed.= @
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable
application of clearly established federal law when it identifies
the correct governing legal rule from Supreme Court cases,
but unreasonably applies it to the facts. Id. at 407-08.
House, 527 F.3d at 1018.
The Court=s inquiry pursuant to the Aunreasonable application@ clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. A[A] federal habeas court may not
issue the writ simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously or
incorrectly. Rather that application must also be unreasonable.@ Id. at 411. A[A]
decision is >objectively unreasonable= when most reasonable jurists exercising their
independent judgment would conclude the state court misapplied Supreme Court law.@
Maynard, 468 F.3d at 671. The Supreme Court has also stated:
[E]valuating whether a rule application was unreasonable
requires considering the rule=s specificity. The more general
the rule, the more leeway courts have in reaching outcomes in
case-by-case determinations. [I]t is not an unreasonable
application of clearly established Federal law for a state court
to decline to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.
Richter, 562 U.S. at 101 (internal quotation marks omitted). In conducting this analysis,
the Court Amust determine what arguments or theories supported or . . . could have
supported the state court=s decision@ and then Aask whether it is possible fairminded
jurists could disagree that those arguments or theories are inconsistent with the holding in
a prior decision of [the Supreme] Court.@ Id. at 102. In addition, Areview under
' 2254(d)(1) is limited to the record that was before the state court that adjudicated the
claim on the merits.@ v. Pinholster, 563 U.S. 170, 181 (2011).
Under this standard, Aonly the most serious misapplications of Supreme Court
precedent will be a basis for relief under ' 2254.@ Maynard, 468 F.3d at 671; see also
Richter, 562 U.S. at 102 (stating that Aeven a strong case for relief does not mean the
state court=s contrary conclusion was unreasonable@).
As a condition for obtaining habeas corpus from a federal
court, a state prisoner must show that the state court=s ruling
on the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
Richter, 562 U.S. at 103.
The Court reviews claims asserting factual errors pursuant to 28 U.S.C.
' 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002).
Section 2254(d)(2) allows the Court to grant a writ of habeas corpus only if the relevant
state court decision was based on an unreasonable determination of the facts in light of
the evidence presented to the state court. Pursuant to ' 2254(e)(1), the Court must
presume that the state court=s factual determinations are correct and Applicant bears the
burden of rebutting the presumption by clear and convincing evidence. AThe standard is
demanding but not insatiable . . . [because] >[d]eference does not by definition preclude
relief.= @ Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537
U.S. 322, 340 (2003)).
Finally, the Court=s analysis is not complete A[e]ven if the state court decision was
contrary to, or involved an unreasonable application of, clearly established federal law.@
Bland v. Sirmons, 459 F.3d 999, 1009 (10th Cir. 2006). AUnless the error is a structural
defect in the trial that defies harmless-error analysis, [the Court] must apply the harmless
error standard of Brecht v. Abrahamson, 507 U.S. 619 (1993) . . . .@ Id.; see also Fry v.
Pliler, 551 U.S. 112, 121-22 (2007) (providing that a federal court must conduct harmless
error analysis under Brecht anytime it finds constitutional error in a state court proceeding
regardless of whether the state court found error or conducted harmless error review).
Under Brecht, a constitutional error does not warrant habeas relief unless the Court
concludes it Ahad substantial and injurious effect@ on the jury=s verdict. Brecht, 507 U.S.
at 637. A[A] >substantial and injurious effect= exists when the court finds itself in >grave
doubt= about the effect of the error on the jury=s verdict.@ Bland, 459 F.3d at 1009 (citing
O’Neal v. McAninch, 513 U.S. 432, 435 (1995)). AGrave doubt@ exists when Athe matter
is so evenly balanced that [the Court is] in virtual equipoise as to the harmlessness of the
error.@ O=Neal, 513 U.S. at 435.
The Court makes this harmless error determination based upon a review of the
entire state court record. See Herrera v. Lemaster, 225 F.3d 1176, 1179 (10th Cir.
2000). AIn sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht,
and if the state court adjudicated his claim on the merits, the Brecht test subsumes the
limitations imposed by AEDPA.@ Davis v. Ayala, 576 U.S. ---, 135 S. Ct. 2187, 2199
(2015) (citing Fry, 551 U.S. at 119-120).
If a claim was not adjudicated on the merits in state court, and if the claim also is
not procedurally barred, the Court must review the claim de novo and the deferential
standards of ' 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196 (10th
B. Merits of Claims
1. Claim One
In Claim One, Applicant asserts that he was forced to represent himself at trial over
his objections and in violation of his Sixth Amendment rights. Docket No. 8 at 14.
Applicant further asserts that he refused to waive counsel, did not waive counsel, but was
forced to go to trial without counsel over his objections. Id.
In addressing this claim, the CCA found as follows:
II. Right to Counsel
Defendant contends that his constitutional right to counsel was
violated because he was forced to represent himself during trial.
The fundamental right to the assistance of counsel is constitutionally
guaranteed by the Sixth Amendment. U.S. Const. amend. 6; see Colo.
Const. art. II, § 16; People v. Alengi, 148 P.3d 154, 159 (Colo. 2006). A
defendant also has a correlative constitutional right to self-representation.
Alengi, 148 P.3d at 159. That right may be asserted affirmatively or by
inference when the defendant declines to be represented by counsel. Id.
Before proceeding pro se, a defendant must knowingly, intelligently,
and voluntarily waive his constitutional right to counsel. People v.
Bergerud, 223 P.3d 686, 693 (Colo. 2010); People v. Krueger, 2012 COA
80, ¶ 13. A defendant may waive assistance of counsel either expressly or
impliedly through his or her conduct. Alengi, 148 P.3d at 159. An implied
waiver occurs when the defendant is deemed to have forfeited the right to
counsel, as opposed to having made a deliberate decision to forgo the
“Courts must ascertain whether, under the totality of the
circumstances, a defendant’s conduct evinces a voluntary, knowing, and
intelligent waiver of right to counsel.” Id. “A defendant’s pattern of
obstreperous, truculent, and dilatory behavior may be deemed relevant as
to whether such conduct has been undertaken with full awareness of the
consequences of doing so.” Id.; see also People v. Tellez, 890 P.2d 197,
198 (Colo. App. 1994) (“the defendant cannot delay his [or her] trial
indefinitely under the guise of seeking counsel”).
Whether a defendant effectively waived his right to counsel is a
mixed question of fact and law that we review de novo. Bergerud, 223
P.3d at 693; Krueger, ¶ 15.
B. Trial Court Proceedings
Five attorneys, in succession, represented defendant before trial,
and each requested and was granted permission to withdraw from that
representation. After the trial court granted the fourth attorney’s request to
withdraw, defendant said he did not want to be represented by counsel and
that he wanted to proceed pro se. The court then gave defendant a
thorough Arguello advisement regarding his decision to represent himself.
See People v. Arguello, 772 P.2d 87, 95-96 (Colo. 1989). Defendant
repeatedly said he wanted to represent himself.
Defendant reaffirmed his decision to represent himself at the next
two pretrial hearings. On February 22, 2006, defendant asked for a
continuance and waived his right to speedy trial so that he could hire
advisory counsel to help him review discovery.
At a pretrial hearing three weeks before the new trial date, defendant
again asked for a continuance to hire advisory counsel to help him review
discovery. The prosecution expressed concern that although defendant
appeared pro se and said he wanted to represent himself, he was, at the
same time, writing letters to the court saying he wanted to be represented
by counsel. During the hearing, defendant affirmed that he wanted to
represent himself and said he wanted to hire advisory counsel to help him
when he testified at trial. The court denied defendant’s request for a
Two weeks before trial, defendant’s fifth attorney entered an
appearance and asked for a continuance to prepare for trial. The court
granted the request over the prosecution’s objection. The court expressed
concern “that there is a manipulative aspect of this that is very obvious to
the Court.” The court found that the “past history of this case, as
articulated by [the prosecutor], speaks to the issue of there being an
attempt to avoid the ultimate resolution of this case before a jury.”
A few days before trial, defendant’s fifth attorney filed a motion to
withdraw. The court granted counsel’s motion to withdraw, finding a
conflict of interest had arisen. The court then considered, and denied,
defendant’s motion for a continuance.
The court noted that during defendant’s competency evaluation, the
interviewer determined that defendant had “a working knowledge of the
legal system that surpassed [that of] most individuals” and “a distinctly
acute understanding of the proceedings against him.” The interviewer’s
diagnostic impression of defendant was that he “appears to use the means
available to him in the moment to accomplish his goals, including
threatening suicide, threatening litigation, and intimidating those around
him.” The interviewer concluded that defendant’s “ability to work with his
attorney to develop the best defense possible is not an issue.”
The court found that defendant was “highly intelligent,” had a long
history of conflict with his counsel, and had attempted to intimidate the court
through use of profanity. The court also found that defendant “has an
extremely high interest in exercising control, manipulating and dominating.”
The court summarized defendant’s history with counsel as follows:
What’s clear to the Court is that the pattern in this case is quite
stark and is quite clear: Mr. Vreeland, while having the ability
to certainly retain counsel, retains counsel, inescapably
enters into a conflict, fires that lawyer, and has to seek to
retain new counsel; it’s occurred with [the former attorneys].
The court found that defendant, “when he was pro se, was adamant,
adamant in his desire to represent himself” and that his “pro se pleadings
reflect a persistent, adamant desire to represent himself.” The court
further found that defendant “has obviously manifested a desire to
represent himself in the past,” including after extensive Arguello
On the morning of trial, a sixth attorney tried to enter a “conditional
entry of appearance,” in which he agreed to enter an appearance if the
court granted a continuance for him to prepare for trial. The court denied
the “conditional” entry of appearance because no such motion exists under
Colorado law. The court also denied defendant’s motion to continue the
trial based on his past manipulation of the process. Counsel did not enter
an appearance to represent defendant; instead, he acted as defendant’s
advisory counsel during trial.
C. Analysis and Conclusion
The record amply supports the trial court’s findings that defendant
waived his right to counsel. See Alengi, 148 P.3d at 159. Defendant said
repeatedly that he wanted to proceed pro se, including after extensive
Arguello advisements about the consequences of his decision to do so. In
addition, defendant repeatedly said both orally and in writing that his
intention was to represent himself and that counsel had been “forced upon
In addition, the totality of the circumstances shown in the record also
demonstrates that defendant’s actions impliedly waived his right to counsel.
See id. Most, if not all, of the delay in bringing the case to trial was a result
of defendant’s repeated failure to maintain a working relationship with
counsel. See Tellez, 890 P.2d at 198. In addition, the record shows that
defendant had a pattern of threatening counsel, filing meritless motions,
and firing counsel as the date of trial approached. Such behavior supports
the conclusion that defendant, who is “highly intelligent,” was manipulating
the legal system with full awareness of the consequences of what he was
doing. See Alengi, 148 P.3d at 159.
Accordingly, we conclude defendant’s right to counsel was not
Docket No. 17-2 at 2-8.
In the Reply, Docket No. 68, at 22-23, Applicant argues that he revoked his waiver
of counsel and reasserted his right to counsel in June of 2006. Applicant further argues
that the trial court allowed and encouraged Applicant’s reassertion of the right to counsel
when it allowed Joseph Scheideler to enter as counsel of record. Docket No. 68 at 22.
Applicant contends that from June 2006 forward he did not waive, expressly or implicitly,
his right to counsel, and the trial court never warned Applicant that the earlier waiver of
the right would somehow be revived against him. Id. at 22-23.
Applicant also asserts that the first attorney was hired by his family only for the
purpose of the bond hearing and the second attorney was appointed by the trial court, but
withdrew when she learned Applicant was hiring private counsel. Id. at 17. Applicant
further asserts that there was no indication of conflict, wrongdoing, or manipulation with
either of these attorneys. Id. Applicant also contends that his third attorney moved to
withdraw based on a “cryptic” irreconcilable differences, but there was no indication,
allegation, or finding of manipulation or misconduct by Applicant. Id. As for the fourth
attorney, Applicant asserts that his withdrawal was based on vague and uncertain factual
circumstances, which included his representation of another defendant, but no findings
were made to determine that Applicant caused the withdrawal. Id.
Applicant concedes the withdrawal of the fifth attorney did include a factual
dispute, but he asserts the trial court refused to investigate the details of the dispute and
imputed the blame for withdrawal on Applicant. Id. at 17-18. Applicant contends he did
not waive his right to counsel when the fifth attorney withdrew, but he reasserted his right
to counsel and made clear he could not try the case pro se. Id. at 18.
Applicant asserts, when he hired a sixth attorney and that attorney requested a
continuance to prepare for trial, the trial court’s denial of the continuance violated
Applicant’s right to counsel. Id. at 28-29. Applicant claims the trial court ruled that he
had waived his right to counsel without first warning him that his conduct might lead to a
waiver and without conducting an actual hearing. Id. Applicant also contends that he
was represented by his fifth attorney up to November 17, 2006, when he withdrew eleven
days before trial. Id. at 25. Applicant further contends that at this time he expressed to
the trial court he could not try the case by himself. Applicant states that the only time he
expressed a willingness to proceed pro se was when his fourth attorney withdrew on
February 8, 2006. Id.
The Court has reviewed the state court record to clarify when each attorney
entered an appearance on Applicant’s behalf and then subsequently withdrew, and the
circumstances surrounding the withdrawals. The Court finds as follows:
On October 18, 2004, Declan J. O’Donnell entered an appearance on behalf of
Applicant in Criminal Case No. 04CR706 in the District Court for Douglas County,
Colorado. Case No. 04CR706 Court File at 000055. Mr. O’Donnell filed a motion to
withdraw as Applicant’s attorney on October 25, 2004 because Applicant had (1)
misrepresented his named as Barry Clayton Steeves; (2) posted a $100,000 surety bond
for a $15,000 fee, which the monies were from a stolen credit card; (3) absconded from
Colorado; (4) a no bond hold in Michigan; (5) numerous warrants pending for theft; and
(6) caused the retainer to be executed on fraudulent grounds. Id. at 000107. The
motion to withdraw was granted on December 3, 2004. Id. at 000126. A notice of the
motion to withdraw was waived because Applicant had absconded and his whereabouts
were unknown. Id.
On February 3, 2005, Magistrate Judge Marker, in the County Court for Douglas
County, Colorado, determined Applicant was indigent and ordered a private attorney,
Juliet Miner, appointed because a co-defendant was represented by the public defender.
Id. at 000141. Ms. Miner entered an appearance on February 8, 2005 and filed a motion
for discovery. Id. at 000142. At a bond hearing on February 17, 2005, Ms. Miner
informed the trial court that Applicant had asked her to withdraw as his attorney because
he was hiring a private attorney and she was “not doing what he believes he needs to be
doing.” Feb. 17, 2005 Hr’g Tr. at 2. Judge Marker then had a colloquy with Applicant as
THE COURT: All right, Mr. Vreeland what are your intentions
regarding hiring your own counsel?
MR. VREELAND: I hired my own counsel before I was even brought
here. But both Courts had told me that I don’t have a right to contact them
and we both know that that’s been on the record. So what I did is I filed a
motion up in the Federal Court in Denver. I, I have the right to have my
own counsel, I have the right to retain, I hired Steve Goodwin and I hired
Tom Henry. Both this Court and Judge King said I don’t have the right to
communicate with them. So now what I’m doing is I’m using someone
else, I’m going to retain Steinberg and I’m going to have Tom Henry - THE COURT: And how do you plan on doing that Mr. Vreeland?
MR. VREELAND: How do I plan on what?
THE COURT: Hiring Mr. Steinberg?
MR. VREELAND: My family’s going to hire them why, I don’t think
how I retain somebody is important, the fact that-THE COURT: Okay, well don’t tell me what’s important, okay?
MR. VREELAND: Your Honor I’m hiring my own attorney and there’s
nothing you can do about it, that’s that. I’m hiring my own counsel.
THE COURT: Okay, we’re done.
MR. VREELAND: That’s it, you’re right.
THE COURT: Ms. Miner you will have to continue representing him
until someone else answers, all right?
Id. at 3-4.
Ms. Miner appeared on Applicant’s behalf at the February 24, 2005 hearing, during
which the preliminary hearing was continued until Mr. Steinberg had been retained and
would hopefully appear. Feb. 24, 2005 Hr’g Tr. at 3. On March 8, 2005, Harvey A.
Steinberg entered an appearance, on behalf of his firm, and requested discovery. Case
No. 04CR706 Court File at 000143. On March 10, 2005, an entry of appearance was
made by Adam Tucker, an attorney in Mr. Steinberg’s firm. Mar. 10, 2005 Hr’g Tr. at 2-3.
On March 11, 2005, Applicant submitted a letter to Judge Marker and asked that he be
allowed to waive counsel and enter a plea because of the conditions of his confinement.
Id. at 000151-57.
However, on May 12, 2005, Applicant appeared at the preliminary hearing with Mr.
Steinberg and Mr. Leach, apparently another attorney from Mr. Steinberg’s firm. May
12, 2005 Prelim. Hr’g. At the end of the hearing, Applicant chose to speak on his behalf,
against the recommendation of his attorney, id. at 144 (page 31 of the hearing transcript),
regarding the $1 million dollar bond the court was setting. Applicant was argumentative
with the judge, accused her of being prejudicial because she had been a district attorney,
and asked the judge to recuse herself, even though he was represented by counsel at the
time. Id. at 153-54 (pages 40-41 of the hearing transcript).
Then on May 12, 2005, May 27, 2005, and June 15, 2005, Mr. Steinberg filed three
motions to reduce bond. Case No. 04CR706 Court File at 000189, 193, 195. On June
17, 2005, a motion for extension of time to brief the issuance of bail was filed by Matthew
T. Berumen on behalf of Applicant. Id. at 000197. On July 26, 2005, Mr. Steinberg filed
a motion to withdraw and a notice of withdrawal. Id. at 000202-204. In the motion to
withdraw, Mr. Steinberg asserts that he and Applicant had developed irreconcilable
differences with regard to Mr. Steinberg’s representation. Id. at 204. In the notice of
withdrawal, Mr. Steinberg informed Applicant, in particular, that (1) a hearing would be
scheduled on the motion to withdraw; (2) he had a right to object to the withdrawal; and (3)
withdrawal will be allowed if approved by the court. Id. at 000202-203.
On September 13, 2005, a hearing was held to address Mr. Steinberg’s motion to
withdraw. The colloquy between the court, Mr. Steinberg, and Applicant was as follows:
THE COURT: And you have a motion to withdraw?
MR. STEINBERG: Correct.
THE COURT: Anything you care to add?
MR. STEINBERG: No, Your Honor.
THE COURT: Mr. Vreeland, your position with respect to the motion
MR. VREELAND: He needs to withdraw.
THE COURT: That request is granted.
MR. STEINBERG: Thank you.
MR. VREELAND: Can I ask you a question?
THE COURT: Go ahead.
MR. VREELAND: About a month ago I had two attorneys, two firms,
ask Mr. Steinberg for the discovery and legal materials but he won't give up
either. I won’t use the words he used. You have told me not to swear to
the court. He refused to give up anything.
THE COURT: It sounds to me like you are having an issue with Mr.
Steinberg and the retention of discovery; is that correct?
MR. VREELAND: That and money that I gave him. There is [a] man
from the Supreme Court his name is -- I can’t remember. He is an attorney
for counsel regulation. He told me to bring it up to the Court. What
happen so far is he started a complaint. Harvey, he refuses to give up any
of the money at all. He kept way more money than he was supposed to
keep. He is refusing to give up discovery. It's been way over a month
since this happened.
THE COURT: With respect to that issue, thank you for bringing it to
my attention. If there are disciplinary issues they will resolve that. With
respect to the discovery question, if you retain new counsel and the court
appoints new counsel to represent you, they will get discovery either
through Mr. Steinberg or through the DA’s Office.
MR. VREELAND: They have and they are being denied.
THE COURT: Who is your new lawyer?
MR. VREELAND: Shawn [sic] Young and Tom Henry.
Sept. 13, 2005 Hr’g Tr. at 2-3.
Following the September 13 Hearing, the next hearing was held on September 22,
2005, during which attorney Sean Young appeared on behalf of Matthew Berumen. The
colloquy between the court and Mr. Young at the September 22 hearing was as follows:
THE COURT: All right. Mr. Young, are you entering your appearance
then on behalf of Mr. Vreeland at this point?
MR. YOUNG: Actually, I’m not. I’d like to see the document that
entered our appearance on this in the first place, because he originally had
Harvey Steinberg on this case, and I don’t know how our law firm got on the
case. We had him for a bond issue on a separate issue, and somehow our
name got on the record for this case, which is a criminal case, and obviously
there’s some sort of entry, because now today Mr. Thomas Henry --- I’m
entering appearance for Mr. Henry and appearing for him today. He’s
recently been licensed in the State of Colorado, and entering appearance
for him and trying to withdraw ourselves, because we never entered our
appearance on this specific case.
THE COURT: All right. Well, actually, we don’t have you entering
on this case.
MR. YOUNG: Okay, good.
THE COURT: We have Mr. Steinberg, who the Court permitted to
withdraw last time, and Mr. Vreeland indicated to the Court that you would
be his lawyers on this case. So my clerk contacted you advising the matter
was set over today for appearance of counsel.
Sept. 22, 2005 Hr’g Tr. at 2-3.
On September 21, 2005, Thomas E. Henry made an entry of appearance as
counsel for Applicant. Case No. 04CR706 Court File at 000263. Mr. Henry, thereafter,
filed several motions for the presiding judge to recuse, a motion for continuance, a motion
to evaluate Applicant’s competency, a motion for an independent evaluation, discovery
motions, request that author of laboratory report testify, a motion to dismiss for violation of
speedy trial rights, motion to allow independent examination, motion to dismiss for
violation of attorney/client privilege, a motion for dismissal of habitual criminal counts, and
a motion to specify Rule 404 evidence. Id. at 000264, 266, 276, 282, 294, 300, 305, 306,
308, 311, 313, 316, 319, 324, 326, 328, 331, 333, and 338.
At the January 27, 2006 hearing, Mr. Henry, in support of the motion for speedy
trial, stated as follows:
In this particular sequence of events starting back at the end of
January, February, March, April, there were numerous examples where if
there was an attorney present, the defendant made the assertion that he
wanted to represent himself and proceed without counsel, which in each
instance was denied.
There were instances where he was represented by the public
defender, and in each instance where the public defender asked – either
that she wasn’t prepared or hadn’t received the discovery or some reason,
the defendant continually asserted that he would represent himself to
proceed, and that despite those representations, the Court would turn down
or deny his permission to represent himself, and without proper advisement
to the defendant would deny or continue the proceeding without the
defendant’s acknowledgement of what effect that may have on his speedy
Jan. 27, 2006 Hr’g at 36.
On January 31, 2006, Applicant filed a letter addressed to Judge King requesting
that he be able to represent himself. Case No. 04CR706 Court File at 344. He asserted
that he had asked to represent himself many times and his right to self-representation
constantly had been denied in violation of his speedy trial rights. Id. Applicant further
stated that he had filed motions pro se since February 2005 and this issue needed to be
On February 8, 2006, the trial court addressed the request of Applicant’s third
attorney (Mr. Henry) for permission to withdraw as counsel for Mr. Vreeland. Feb. 8,
2006 Hr’g Tr. at 3. At issue in Mr. Henry’s request to withdraw was a criminal report
prepared by the sheriff’s office, reflecting Applicant’s assertion that Mr. Henry had tried to
blackmail Applicant for the money that allegedly had been stolen by another of Mr.
Henry’s clients. Id. at 4. According to Mr. Henry, Applicant denied the allegations and
told Mr. Henry he had to do what he had to do. Id. at 5. The prosecution then
addressed the issue as follows at the hearing:
MR. VAHLE: Judge, I don’t have a lot of argument as to whether or
not he should be allowed to withdraw. I want the record to be very clear,
though, as to how this came about.
Lieutenant McMahon is here. If the Court wishes, I can either add to
the offer of proof which counsel has put on the record, which I think is -what he stated is all true. Or I can call Lieutenant McMahon to detail the
circumstances. But I think given the nature of the litigation in this case,
there needs to be a very clear record of how this came about.
THE COURT: If you wish to make an offer proof, you may. I’ve
heard from Mr. Henry; I don't dispute Mr. Henry’s statements in any way,
shape, or form with respect to what occurred. He’s indicated to the Court
he has a conflict. I’m not even permitted to really inquire into the conflict. If
counsel indicates he’s got one, then that’s probably about all the further
inquiry that I can make.
MR. VAHLE: And, Judge, if I may make just a little more record. I’ve
talked to Lieutenant McMahon, and my understanding is about
mid-December Mr. Vreeland approached him and wanted to level a
complaint against Mr. Henry. He did tell Lieutenant McMahon that Mr.
Henry was trying to blackmail him. He provided him some documentation,
including some sort of power of attorney documents that were -- have Mr.
Henry’s name and address on them allegedly prepared for the transfer of
There was this statement, as Mr. Henry discussed, that Mr. Vreeland
and Mr. Wanta, Leo Wanta, had been involved in some crime, had some
access to a bank account, and how somehow Mr. Henry and Mr. Wanta
were attempting to blackmail Mr. Vreeland. He requested that Lieutenant
McMahon have the FBI look into that.
Lieutenant McMahon did follow up on that request, did ask the FBI to
investigate. The FBI, after some discussions -- and I think there was some
trouble getting ahold of him -- frankly refused to come and speak with Mr.
Vreeland having spoken with him on numerous occasions about other
matters and, frankly, finding him to be incredible said, “We don't even want
to talk to him.” So there was no investigation I know of by the FBI.
That material was then turned over to Dea Aragon. There was
some discussion in earlier hearings about the timing of this material coming
up. I think that's important for future issues.
That material was turned over to Dea Aragon on the 12th of January.
Dea Aragon had surgery and had her gallbladder removed on the 13th of
January, returned to her office on the 25th of January, and reviewed that
material for the first time on the 26th of January. And it was provided to the
district attorney's office on the 27th, and then provided that morning to
So that’s all the record I want to lay. I don’t have any position as to
Feb. 8, 2006 H’rg Tr. at 6-8.
Mr. Henry then confirmed his desire to withdraw after the prosecution made the
above offer of proof. Id. at 8. The trial court asked Applicant if he wanted to have
counsel represent him, to which Applicant responded, “No.” Id. Applicant also
responded “yes” to the court’s question if he wanted to proceed pro se and stated that he
wanted to “finish the motions today, please.” Id. The Court then provided the Arguello
advisement to Applicant as follows:
THE COURT: Mr. Vreeland, do you understand that you have the
right to be represented by counsel throughout these proceedings?
THE DEFENDANT: Yes, I do.
THE COURT: Do you understand that if you cannot afford an
attorney, that one will be provided to you free of charge?
THE DEFENDANT: Yes, I do.
THE COURT: Do you understand that I will appoint counsel if you
want an attorney to represent you?
THE DEFENDANT: Yes, I do.
THE COURT: Previously you've been advised of the charges against
you. Do you recall the advisement of the charges that are currently
pending against you?
THE DEFENDANT: Yes, I do.
THE COURT: And I believe there has been -- do you recall being
advised of the potential punishment with respect to the charges that are
pending against you?
THE DEFENDANT: Oh, yes, I do.
THE COURT: And there’s been the addition of some habitual
criminal counts. Have you been advised with respect to the potential
consequences of the habitual criminal counts and the punishment with
respect to that?
THE DEFENDANT: Yes, I do.
THE COURT: All right. Do you have any formal legal training?
THE DEFENDANT: A little bit.
THE COURT: How much is a little bit?
THE DEFENDANT: I have 17 different certifications.
THE COURT: How far have you gone in school?
THE DEFENDANT: Bachelor’s.
THE COURT: Are you under the influence of any drug, medication,
or alcohol that would affect your ability to understand these proceedings?
THE DEFENDANT: No, I do not.
THE COURT: Do you wish to consult with the public defender before
you make a decision to waive counsel and represent yourself?
THE DEFENDANT: Absolutely not.
THE COURT: Do you understand that the field of criminal law is
complicated and that a lawyer trained in this field would be of great help in
preparing and presenting your defense?
THE DEFENDANT: Yes, I do.
THE COURT: Do you understand that you have a right to remain
silent and that anything you say can be used against you in court?
THE DEFENDANT: Yes, I do.
THE COURT: Would you request that the court appoint counsel to
THE DEFENDANT: No.
THE COURT: While you should understand that you have a right to
represent yourself, by doing so you take a great risk of not properly
representing yourself and preparing your defense. Do you understand
that, Mr. Vreeland?
THE DEFENDANT: Yes, I do.
THE COURT: Do you understand that you have a right to confront
witnesses against you and to cross-examine them?
THE DEFENDANT: Yes, I do.
THE COURT: Do you understand that you have a right to have
witnesses you choose compelled to appear in court and testify on your
THE DEFENDANT: Yes, I do.
THE COURT: Mr. Vreeland, what is your request at this point in time
with respect to whether you wish to have the court appoint counsel to
represent you? You are clearly indigent, you’re in custody. Do you wish
the court to appoint counsel to represent you?
THE DEFENDANT: No, I do not want appointed counsel.
THE COURT: Do you wish to represent yourself?
THE DEFENDANT: Yes, I do.
Id. at 10-12.
The trial court in response to a request by the prosecution further advised
Applicant as follows:
MR. VAHLE: Judge, the People are prepared. I would ask for just a
little further advisement under Arguello on a couple of issues, if I might.
THE COURT: Tell me what you want the court to ask, and I’ll see if I
will grant it.
MR. VAHLE: Judge, first off, the court has asked whether the
defendant wants a public defender or wants to speak with a public
defender. There was a conflict on this case. Originally Juliet Miner was
appointed as alternative defense counsel. I would just ask the court to ask
Mr. Vreeland whether he wished to speak to Ms. Miner, his former counsel,
or other alternative defense counsel.
THE COURT: Are you indicating that previously there was a conflict
with the public defender's office?
MR. VAHLE: The public defender's office represented the
codefendant, [J.O.], and therefore and could not represent Mr. Vreeland.
THE COURT: So what I'll do -- taking that into consideration -- what
I’ll do, Mr. Vreeland, I’ve just given you an advisement with respect to your
desire to consult -- as part of that advisement, there was a question asked
of you if you wish to conduct with the public defender.
In this case, obviously there’s a conflict of interest. If you wish to
speak with Ms. Miner, I would certainly accord you that opportunity, as she
represented you in the past. And if you seek appointment of counsel, it
would be alternate defense counsel; it would not be the public defender’s
office. Do you understand that?
THE DEFENDANT: I understand that, but there was a conflict with
Juliet Miner as well.
THE COURT: Well, what I’m saying to you is, if you seek counsel, it
would not be the public defender’s office.
THE DEFENDANT: I understand that.
THE COURT: I would appoint someone else to represent you in this
case. I cannot tell right now whether it would be Ms. Miner or not, perhaps
it wouldn't be. But if you’re asking me for counsel, it would not be the
THE DEFENDANT: I’m not asking for counsel.
MR. VAHLE: Judge, secondly, I would just ask the court to advise the
defendant that while conducting the trial, he would be required to follow the
same rules -- the standards, rules of evidence, all those things that happen
in the trial as if he had counsel. And then, further, have him state his desire
to go forward.
And, lastly, Judge, I would ask the court to advise the defendant that
the court would consider giving him time to hire his own attorney -- he has
hired two private attorneys in this case -- and have at least a record as to his
desire to hire private counsel as opposed to having counsel appointed for
THE COURT: What I think I'll do is make some further inquiry of you,
Mr. Vreeland. I note that there have been two previous counsels in this case
retained by you. If you need and wish to retain counsel, I’ll accord you the
time, if that’s what you're seeking at this point.
THE DEFENDANT: No, that's not what I'm seeking, your Honor.
THE COURT: All right. With respect to the other issues raised by Mr.
Vahle, should you desire to represent yourself, obviously, that is perhaps an
unwise decision on your part, but the same rules of conduct, the rules of
evidence that apply to counsel will also apply to you.
THE DEFENDANT: I understand that.
THE COURT: And I think you’ve indicated to me before today you
wish to proceed with the motions hearing; is that correct?
THE DEFENDANT: Yes, I’ve always wanted to proceed, yes.
Id. at 13-16.
Once the trial court found Applicant able to proceed pro se, the court directed
Applicant to submit all motions. On February 9, Applicant filed pro se fifteen documents
that either were motions, notifications, or objections. Case No. 04CR706 Court File at
000352-88. A letter from Applicant to the prosecution also was docketed on February 9
regarding Mr. Henry’s alleged dishonesty and his failure to inform Applicant about the
prosecution’s willingness to enter into plea negotiations. Id. at 000390. The trial court
disposed of several of the motions prior to the February 16, 2006 hearing. Id. at
000398-400. On February 15, 2006, Mr. Henry, on behalf of Applicant, appealed the trial
judge’s denial of the various motions to recuse that had been filed. Id. at 000402-428.
At the February 16, 2006 motions hearing, Applicant submitted at least five
additional motions to be considered along with the other motions, objections, or
notifications filed previously by Applicant. Id. at 000429-45. On February 17, 2006,
Applicant filed an eight-page motion to reconsider the court’s February 16 Order denying
several of Applicant’s motions prior to the hearing. Id. at 448-55. In the February 17
filing, Applicant asserts in part that he
has been forced to go to trial pro se at the last days due to a conflict created
by the state with his attorney. The state has place [sic] the Defendant into
the position that either he waives his speedy trial right and any right to
review the evidence against him, and proceed to trial unprepared without
the facts against him, or accept appointed counsel or retain counsel and
waive his right to speedy trial.
Id. at 454. Then, on February 21, 2006, the day before his jury trial was to start,
Applicant filed a motion for an immediate hearing to “discuss possible adjournment and
other pretrial issues.” Id. at 456. The trial court held a hearing the afternoon of
February 21. The court indicated it would enter an order addressing most of the issues,
but would address some narrow issues the morning of February 22 and delay voir dire
until the afternoon of February 22. Feb. 21, 2006 Hr’g at 3. The trial court further
announced that Applicant’s appeal to the Colorado Supreme Court, through Mr. Henry, of
the denial of his motion for the trial judge to recuse, had been denied. Id. At the
February 21 hearing, the deputy district attorney, Mr. Vahle, informed the court that jail
staff had told him Applicant indicated his desire to have counsel. Id. at 4.
During the February 22 hearing, Applicant submitted a motion for continuance to
seek advisory counsel to review all discovery material and stated he was waiving his
speedy trial right. Feb. 22, 2006 Hr’g at 8. Applicant further asserted that he did not
know that he had to specifically request a continuance or waive his right to a speedy trial
when there appeared to be a Brady issue. Id. at 10. After the court advised him that he
had a right to be tried within six months of the date he entered a not guilty plea and within
six months of the date he requests a continuance, Applicant stated he understood and
affirmed he wanted a continuance, but indicated that he did not need the full six months.
Id. at 14-15.
The colloquy between the court and Applicant regarding a continuance was as
THE COURT: We will schedule the matter, but I have to first rule on
the request to continue the trial. It’s your motion.
By doing this, you are agreeing to waive speedy trial for the next six
months. We’ll set it in accord with the court’s calendar when I bring my
clerk out, but what you’re agreeing to do is you’re agreeing by requesting to
continue the trial that speedy trial is waived for six months. There’s no four
month, three month, two month, one month. It’s six months. Do you
understand all that?
THE DEFENDANT: Yes, I do. If I have to waive to get this done,
that’s what I have to do, yes.
THE COURT: Is that what you want to do in this case?
THE DEFENDANT: Yes, I do.
Id. at 15-16. The trial was reset for July 6, 2006, and all motions were to be filed no later
than forty-five days from February 22, 2006 hearing. Id. at 51-52.
Starting March 24 through April 20, 2006, Applicant filed pro se six motions or
requests for (1) an extension of time to meet the forty-five day deadline for motions; (2)
sealing items in discovery; (3) an order of no contact between witnesses and victims; (3)
court assistance in entering a restraining order and complaint against district attorney; (4)
a hearing date; and (5) all discovery and compliance with all court orders. Case No.
04CR706 Court File at 000490-494, 000501-502, 000506-516, 000518-526. On April
28, 2006, the trial court set a hearing for May 18, 2006 regarding the motions. Apr. 28,
2006 Hr’g at 2. On April 27, 2006, Applicant signed and sent to the court eight additional
motions, which were received on May 2, 2006. Case No. 04CR706 Court File at 000569.
In particular, in a motion for dismissal, Applicant stated that as early as November 3, 2005
he demanded to proceed pro se because he and his attorney were having conflict issues
and his attorney had failed to file motions on October 3, 2005. Id. at 000548. Applicant
further stated that he had informed his attorney he wanted to proceed pro se and have his
attorney serve as advisory counsel. Id. Applicant also submitted eight subpoenas for
appearances at the May 18, 2006 hearing and a witness list. Case No. 04CR706 Court
File at 000530-539.
On May 17, 2006, the trial court denied many of the motions. Several motions
were discussed during the May 18, 2006 hearing, some were ruled on, and others were
left open. May 18, 2006 Hr’g. On June 8, 2006, Applicant filed a motion for
continuance, a request for hearing, a request for production of Brady materials, and a
motion for a new preliminary hearing.
Case No. 04CR706 at 000650 and 661.
Applicant further submitted a letter on June 8, 2006 to the trial court that stated he had
retained the services of the law firm Buchanan, Jurdem, and Cederberg, specifically Scott
Jurdem, to assist him with the motions. Id. at 000654. A hearing was held on June 16,
2006 to address the June 8 motion for continuance. June 16, 2006 Hr’g at 2. During
the hearing, the trial court recapped the procedural events of the case since February 3,
2005, and noted that when Mr. Henry withdrew, and since then, Applicant stated his
desire to represent himself. Id. at 9-11. The trial court further noted that even at the
June 16 hearing Applicant stated that he was retaining advisory counsel and not counsel
to represent him. Id. at 11. The trial court set a hearing on June 27, 2006 to address
the remaining motions. Id. at 13.
On June 27, 2006, attorney Joseph Scheideler entered an appearance on behalf
of Applicant and appeared at the June 27 hearing. Case No. 04CR706 Court File at
000903; June 27, 2006 Hr’g at 2. At the beginning of the hearing, Mr. Scheideler asked
the trial court if Applicant could act as his own counsel and Mr. Scheideler as advisory
counsel at the hearing. Id. Mr. Scheideler also asked that the trial be continued so he
could prepare. Id. at 3. He further stated that Applicant would waive his speedy trial
rights until the end of August and that he would like to try the case and to be advisory
counsel on the case. Id. at 7. The trial court informed Mr. Scheideler that because he
entered an appearance in the case he is counsel of record and not advisory counsel. Id.
at 9. The trial court also stated as follows:
THE COURT: I won’t old [sic] it against you that you have a past
history from New York. But what I will tell you this, you have entered you
[sic] appearance in this case, so you are not advisory counsel, you are
counsel of record. If you were advisory counsel, the matter would proceed
to trial on the 6th of July. The concern the court has is that there is a
manipulative aspect of this that is very obvious to the court. And I do not
want to be played by anybody. And the concern I have is that I agree it
would be impossible for you to be prepared to try this case by July 6th.
The People’s arguments are well taken. This is not the first time we
have been placed in this posture and it has not been something that has
been generated as a result of what the prosecution or the Court has done.
The past history of this case, as articulated by Mr. Vahle, speaks to the
issue of there being an attempt to avoid the ultimate resolution of this case
before a jury.
Having said all that, I believe the court will be setting up error in this
matter for the matter not to be permitted to proceed with competent and
effective counsel. And the court finds there is an entry of appearance in
this matter. The court has accepted that entry of appearance Mr.
Scheideler is not advisory counsel. He is Mr. Vreeland's lawyer based
upon that entry of appearance. Based upon that, the court first of all find
[sic] with respect to the motion today Mr. Vreeland is not counsel at this
Point [sic] time Mr. Scheideler will not be proceeding on pro se motion.
I will allow you the opportunity to review those motions and tell me
which ones, if any of them, you believe have merit and I will certainly let you
address them to the court at some point later. We are not having Mr.
Vreeland act as his lawyer you’re the attorney. With respect to the [sic]
that it’s with some reluctance that the court finds it would be appropriate to
grant the request to continue the trial, request the matter be set in August is
problematic we will set it along the court’s calender [sic]and counsel’s
calendar. The court finds that the request by defense to have the matter
continue Mr. Scheideler with your permission I will speak to your client with
respect to speedy trial issues.
MR. SCHEIDELER: Yes.
THE COURT: Mr. Vreeland, by asking for a continuance you are
agreeing that the People have six months from today’s day in order to bring
you to trial, do you understand that?
MR. VREELAND: Yes, sir.
THE COURT: Is that what you wish to do?
MR. VREELAND: Yes, I do.
Id. at 9-10. A hearing was set for September 1, 2006, to address any remaining motions.
Id. at 13.
Subsequently, the trial court entered an order setting the trial for November 28,
2006 and establishing a deadline for the entry of pleas by November 27, 2006. Case No.
04CR706 Court File at 000906. On August 14, 2006, Mr. Scheideler withdrew several
pending motions. Id. at 911. At a hearing on September 1, several motions were
addressed and a follow-up hearing was set for October 13, 2006. Sept. 1, 2006 Hr’g
Mr. Scheideler filed a motion for new preliminary hearing on October 6, 2006, Case
No. 04CR706 Court File at 000929, and a motion to reconsider the motion to dismiss all
counts, id. at 000914. At the October 13, 2006 hearing, the trial court denied both
motions and granted Mr. Scheideler’s request for a second hearing to address any issues
with the transcripts and any concerns that his conversations with Applicant were being
listened to by jail staff. Oct. 13, 2006 Hr’g at 8 and 12. The trial court set a hearing for
November 3, 2006. Id. at 16. The trial court instructed that this would be the final
motions hearing and that all challenges regarding transcripts would be presented in
writing in advance of the hearing. Id. at 13.
On October 30, 2006, Mr. Scheideler submitted several motions to the court: (1)
motion for dismissal of all counts based on fabricated evidence and misrepresentations
by investigator Dea Aragon; (2) motion for veracity hearing and suppression of search
warrant and all alleged evidences and or statement made to law enforcement as a direct
result of the illegal search and seizure; (3) motion for hearing and ruling on the dismissal
of habitual charges prior to trial; and (4) motion for hearing and suppression of all Rule
404(b) testimony and or evidences. Case No. 04CR706 Court File at 000930-31,
945-46, 948-49, 952-53. Mr. Scheideler also submitted a Rule 16 disclosure of
witnesses and defenses on October 20, 2006. Id. at 000947. The trial court denied all
motions at the November 3, 2006 hearing. The court also denied Applicant’s request for
a continuance of the trial date so his computer expert could evaluate the hard drives of the
three computers seized from Applicant’s home. Nov. 3, 2006 Hearing at 21. The trial
court found the motion for a continuance lacked good faith, but it allowed Mr. Scheideler
to file one motion regarding the hard drive within five days and allowed the prosecution to
respond to the motion within five days from the filing of Mr. Scheideler’s motion. Id. at
On November 7, 2006, Mr. Scheideler filed a motion to submit a transcript record
regarding the provision of the hard drives and a motion to withdraw, along with Applicant’s
motion for a continuance. Case No. 04CR706 Court File at 000954, 960. A hearing
took place on November 17, 2006 to address the motions. Nov. 27, 2006 Hr’g. At the
November 17 hearing, Mr. Scheideler stated that Applicant had fired him because they
had “grave disagreements as to the methodology that would be used here, and besides
that, there is a lot of personal animosity at this point in time.” Nov. 17, 2006 Hr’g at 13.
Mr. Scheideler further stated that “there is a true conflict of interest, both a grievance and
a -- lawsuit pending regarding -- regarding this.” Id.
In response to Mr. Scheideler’s statements, the trial court told Mr. Scheideler that
(1) he needed to provide “more of a record” with respect to the withdrawal; (2) no formal
complaint had been filed with regulation counsel; and (3) a mere disagreement with his
client is not adequate grounds for the court to grant a request to withdraw. Id. at 14-15.
At the trial court’s request, Mr. Scheideler proceeded to describe the conflict as follows:
MR. SCHEIDELER: Well, in the beginning of this case, I reviewed
thousands of pages of -- of discovery material, had intense contact by
telephone and in person, and associates of my firm also in person, with Mr.
Vreeland regarding both federal writs and motions, and in the course of
doing so, became very familiar with the facts of the case.
I have viewed all of the videotapes, and my method of trying the case
would involve a great deal of defense work regarding cross-examining the
witnesses. Mr. Vreeland does not agree that that is the method of choice;
that although he would agree with that particular method, his -- he would
prefer to call numerous witnesses, some of whom I can’t agree are -- are
cogent or necessary for the -- for the case.
As a result of these disagreements, he has considered that I am
incompetent and, therefore, not -- and -- and also that I’m in league with
either the court or the District Attorney’s office and, therefore, I have a
conflict of interest in his mind regarding -- regarding the case.
Again, I have -- I have reviewed the case to the extent where I am
prepared to try the case. Our disagreements go very deep at this point in
time. We have had a number of rather harsh exchanges between one
another and he no longer trusts me, number one; and number two, he
believes that I am incompetent.
I have notice that I am, you know, going to be in -- in a lawsuit with
him, which further drives a wedge between our cooperation. I -- I have no
longer any communication with him; and in this particular case,
communication is absolutely essential in order to -- in order to try the case
THE COURT: Mr. Scheideler, with respect to the two issues -- other
two issues with respect to this lawsuit and the allegations of the grievance,
can you speak to those so –
MR. SCHEIDELER: Well -THE COURT: -- that I have a better understanding of that?
MR. SCHEIDELER: -- I’ve -- I’ve been notified by him that I’m going
to receive a lawsuit, and I have no doubt that that's going to occur, because
he has already sued everyone else, including Mr. Vahle and yourself. So I
have no -- no doubt that he’s going to go ahead with that.
He has filed his own motions. He has reviewed all sorts of law and
knows the procedure for filing lawsuits and grievances. So I have to take
him at his word. Aside from our disagreements, he has never said that he
was going to do something that he didn’t do.
THE COURT: All right. Anything else, Mr. Scheideler?
MR. SCHEIDELER: No, Your Honor.
THE COURT: All right. The Court has entered numerous orders in
this case. The case has been continued several times, usually on the eve
of trial. The court finds there is no good faith basis in support of the request
to continue. The motion to continue is denied.
Id. at 15-17.
The trial court then allowed Applicant to present his position. Applicant stated
THE DEFENDANT: Your Honor, I’ve just sit here and listened to
what Mr. Scheideler has said, and I did write you that letter -- and my back’s
been hurt really bad, so I’m leaning over, so I’m sorry.
I said inside the letter to you that I would waive the attorney/client
privilege with the recorded telephone calls between me and Mr. Scheideler
if he’d ever start lying to you. Well, I’m willing to do that now, because he
knows that he quit on me.
The reason there’s no communication is because he won't take my
calls. He told me, F. off, don’t call me. Sue me. He did that in October.
I did everything in my power to get this man to get online and to defend me.
I gave him a witness list of 80 people; he hasn’t spoken to anyone.
And all this is on the telephone and he’s sitting here smiling acting
like it’s no big deal. The things he said about the court, the things he said
about Darren Vahle, all of that is on tape and I’m willing to waive the
The problem here wasn’t me. I’ve tried everything that I can to get
him to do what he’s supposed to do. Name one thing that he said he was
going to do that he’s ever done.
He has this sheet here, talk about he’s all ready for trial, the things
that he just mentioned to you. In here he talks about how many videotapes
he’s – he’s reviewed. He started reviewing the videotapes of the witnesses
a week ago, and he’s only went through maybe three of them, and there’s
13 two-hour videotapes that he hasn’t reviewed.
He hasn’t reviewed any of the witness statements. He hasn’t
reviewed any of the witnesses that I’ve given him. He hasn’t spoken to
either of the private investigators that I’ve hired. He’s taken almost
$26,000 from my family. He told us he was going to hire a private
He was going to hire a computer expert, which finally he just did hire
a computer expert. I sent him money to pay the computer expert by a
credit card. He gave the computer expert 500 bucks, didn’t even give
him all the money that my mother gave him.
And as far as lawsuits goes, my parents are suing him in U. S.
District Court in the District of Michigan. They’ve retained new counsel.
They are suing you.
That’s what’s going on with the lawsuit. He’s misappropriated the
funds. He hasn’t done anything in this case. He’s sitting in this court and
he’s trying to make it look like I’m trying to accuse him of being in cahoots
with this court or Darren Vahle, and that’s shit, that’s fantasy. I never said
no such thing.
And if the court or Darren Vahle wants to review those tape-recorded
conversations of me and Mr. Scheideler when he says the things he says
about this court and about Darren Vahle and about Dea Aragon or anybody
else, you’re more than welcome to listen to them.
We had a verbal agreement and a written agreement on this case.
He’s done nothing. Now that we’re inside the courtroom, he’s trying to
make it look like he’s Mr. Innocent.
I have mailed out the complaint against him with the attorney
regulation’s counsel. I sent the letter to Mr. -- I think it’s Fat -- Fatzinger or
Fitzinger (phonetic/sic), something like that. I just got a response from him
on a different grievance that I filed against Mr. Vahle.
He does release attorney/client information. He’s – he’s been doing
it himself. He’s been talking to people about my case, about things that
I’ve said to him, things that have not been made public. Like he just
brought up the fact about this lawsuit that I’ve sued Darren Vahle. I don't
know if anybody’s been served on that, because federal court ordered us
not to tell anybody we were suing him. So I don’t understand why he’s in
the courtroom now telling people that we’re suing Darren Vahle.
There’s no way that this man can represent me. That’s why I tried in
October to correct this. And I was really specific on the phone, because I
know that they record the telephone calls, so I was really specific with
it. I asked him specific questions.
When he came down to the jail finally after it was 11 weeks of waiting
for him to come down, he was here and he told me that his wife would
divorce him, and his associate’s girlfriend would leave him if they didn't
leave right away, so we still couldn’t discuss trial strategy. I have never
with this man discussed trial strategy, and that’s what the arguments have
been about all the time. We’ve never discussed witnesses, we’ve
never discussed theory of the case. We’ve never discussed anything on
He said he was going to do a lot of things, he never did them, and
then finally he quit. He said, F. you, F. you, I quit, sue me. I said, Well,
then give me my money back. That’s when he said, F. you, and he hung
up and he quit. Jesse Glassman was present when he did it, it’s recorded
on the telephone call, and I’m willing to waive the conversations.
That’s pretty much all I have to say, Judge.
Id. at 17-21.
The trial court allowed Mr. Scheideler to respond, which he did as follows:
MR. SCHEIDELER: Your Honor, I don’t see, considering the
statements that we just heard, that I can possibly proceed on this case.
Obviously, if you were to order me to do so, I would do so; but without the
communication, without the trust, and with the – with the wedge that’s being
driven between us legally, counsel has advised me that I must -- I must
redound to that request to withdraw.
As far as the -- the ineffective assistance of counsel argument, I have
my detailed hourly work noted from the day I started this case. Despite the
fact that it was a flat fee for -- for preparation and a flat fee for trial, I’ve
received almost the entire flat fee for the preparation, not the entire part. I
have not received $26,000.
I have given the computer expert the entire $1200 that was given to
me by his mother through credit card to -- to continue the case. I’m
informed by that expert that he’s spent 15.5 hours and that there’s due and
owing $350 more.
I’ve met with Tom Kerwin (phonetic), who is the alleged investigator
in this case on two separate occasions, and the fact that the -- the -- the
statement that I have not reviewed the witnesses’ statements or have not
viewed the videotapes is -- is false. It’s not true.
Id. at 22-23.
Applicant then told the trial court that he did not want Mr. Scheideler to represent
him. Id. at 24. The trial court found as follows:
THE COURT: All right. Having heard this, having heard from
counsel, and Mr. Vahle is right to a certain extent, he doesn't have a dog in
this fight, except for the fact that the trial has been continued on more than
one occasion, and that's where this at least is being postured at this point in
time if Mr. Scheideler withdraws here on the eve of trial.
The court does have concerns about the 11th-hour nature of this, but
the court has also listened to Mr. Scheideler, has listened to Mr. Vreeland.
It appears to the court it’s obvious from the purpose -- from the record that
there does exist a conflict between the two with respect to how the case is to
proceed given the nature of Mr. Vreeland’s own statements today and the
letter that was written indicating that he intended to sue and to grieve Mr.
Given the fact that while there is no grievance that the Court is aware
of that's been filed yet, it would seem to the Court that if a client has
indicated that his intentions were to grieve and to sue his counsel, that
would certainly serve as grounds to put a chill on the relationship between
attorney and client and could very well impact or affect the ability of counsel
to be effective.
Obviously, Mr. Scheideler would have to conduct the trial certainly in
a professional manner, but obviously knowing that even before he started
that the case was going to be subject to -- he was going to be subject to a
potential grievance and a lawsuit, that would not be a cloud upon which -under which someone should be trying a case.
While I understand this, I have some reluctance given the 11th-hour
nature of this, but I’m only dealing with the motion to withdraw at this point in
time, and I think that the record’s been complete with this and the court
believes that Mr. Scheideler’s motion does have merit given what I've heard
today, and I will permit Mr. Scheideler to withdraw as counsel in this case.
I do this reluctantly, not casting any particular aspersion on anybody, just
we find ourselves in a very awkward posture at this point in time.
Now having said that, I intend to address the motion to continue,
which I believe now that Mr. Scheideler is no longer counsel, would be
Id. at 24-26.
Applicant stated that he had contacted Al Haddon’s Office and attorney Pamela
Mackey. Applicant said that they were waiting to hear from him regarding appointment,
but they could not be prepared to proceed to trial in ten days. Id. at 28. Applicant
further stated that he did not want a six-month continuance and he could not proceed to
trial by himself. Id. at 28 and 35. The trial court then read the results from a mental
status examination performed by Dr. Chamberlin as part of the competency evaluation
the court ordered at the request of Mr. Henry. After reading the results of the
examination, the trial court found as follows:
THE COURT: . . .With respect to a diagnostic formulation, Mr. -- or
Dr. Chamberlin indicated that Mr. Vreeland’s intelligence level is high
average minimally and he has a distinctly acute understanding of the
proceedings against him and his ability to work with his attorney to develop
the best defense possible is not an issue.
With respect to that, the court clearly notes for the purposes of this
record that Mr. -- Mr. Vreeland, as articulated by Dr. Chamberlin in the
report, has a tendency -- first of all, is highly intelligent, understands the
criminal justice system very well, and is, as Dr. Chamberlin noted, will “use
the means available to him in the moment to accomplish his goals, including
threatening suicide, threatening litigation, and intimidating those around
The court harkens back to the first appearance of Mr. Vreeland
before the court in which Mr. Vreeland described the court and said the
following after the court had entered an order: “So you will not let me
contact my counsel? Okay. No problem. Piece of shit. Mother fucker
piece of shit." Clearly, an attempt by Mr. Vreeland to intimidate the court.
The court also notes the following: Mr. Vreeland had a long history of
contacts with previous counsel in this case. I’m going to spend a moment
of time to go through that history in some detail.
Mr. Vreeland, on January 28th, indicated – one of his earlier
appearances on January 28th, 2005, indicated that he had retained private
counsel, he did not wish to have the public defender appointed to
represent him. On February 23d, the court appointed the alternate
defense counsel to represent the defendant because of an obvious conflict
with the public defender’s office. No lawyer had appeared on behalf of
Mr. Vreeland made requests as early as the 17th of February, 2005,
to have the alternate defense counsel withdraw, and on the -- court
indicated that alternate defense counsel would remain on the case until the
defendant had retained other counsel. On the 24th, the preliminary
hearing that was set for that date was continued at the request of all parties
based upon Mr. Vreeland’s representations that he was retaining private
counsel and that alternate defense counsel would not be proceeding.
On the 10th of March, a lawyer named Tucker, who I believe is
associated with Mr. Steinberg's office, Steinberg and -- pardon me,
Springer and Steinberg -- appeared and the matter was set for preliminary
hearing on the 12th of May, 2005. On the 12th of May, the defendant again
moved to continue the preliminary hearing, that was denied. The
preliminary hearing was held on the 12th of May. On the 19th of May, a
county court judge made findings and bound the case over to district court.
Mr. Vreeland appeared in district court on the 31st of May, 2005, with
Mr. Steinberg. The arraignment was set for July the 6th. Mr. Steinberg
appeared, Mr. Vreeland also appeared, on July the 6th, 2005. The matter
was then set for trial with a motions hearing being set.
On the 13th of September, Mr. Steinberg filed a motion to withdraw.
Mr. Vreeland indicated that a gentleman named Mr. Young would be
entering his appearance on behalf of the defendant. Mr. Vreeland
provided a phone number for Mr. Young.
On the 22d of September, 2005, a Thomas Henry appeared on
behalf of the defendant. The matter was set over for further proceedings to
the 30th of September. On the 3d of November -- and trial in this case had
been set for December the 6th. On the 3d of November, the defendant
refused to appear in court. His -- the issue of competency was raised by
Mr. Henry. The court then directed that in accord with the statutes that an
examination be conducted, I just read from portions of that examination that
eventually occurred, and the trial date was then vacated due to the defense
counsel raising the issue of competency.
On January, 2006 -- January 6th, 2006, the court found, based upon
Dr. Chamberlin's report, that the defendant was competent. Jury trial was
reset within speedy trial. On the 1st of February, counsel for Mr. Vreeland,
Mr. Henry, raised the issue of a potential conflict, which included the
defendant accusing Mr. Henry of blackmailing him.
On the 8th of February, Mr. Henry reasserted that conflict. The
court, having heard that and also having heard that that was Mr. Vreeland’s
desire, to have Mr. Henry withdraw, granted that request. Mr. Vreeland
requested to represent himself. The court conducted several Arguello
advisements and went into detail. Mr. Vreeland adamantly asserted his
right to represent himself.
On the 22d of February, in spite of the defendant having previously
indicated he had no desire to continue the trial, the defendant asked to have
the trial continued. The court granted that request, directed that trial be set
for July the 6th of 2006. The defendant made another request to continue
that trial on June 16th, 2006. That was denied.
On the 27th of June, the court permitted Mr. Scheideler to enter his
appearance. The court notes, and as the court has indicated previously,
Mr. Scheideler indicated he would be unable to try the case on July 6th, the
trial date, but he would be able to go later on, and at that time he was only
asking the court for a short continuance. He indicated to the court that he
would be not able to try the case on the 26th (sic); there was no way on
God’s green earth that he could be competent and ready to proceed on July
The court then permitted the trial to be reset, over the objection of the
defendant -- over the objection -- over the objection of the People, to
November the 28th. The court notes that Mr. Scheideler represented the
defendant, motions were litigated by Mr. Scheideler between the -- his entry
of appearance and the day of trial, and on the 17th of November, today’s
date, 2006, the court permitted the defendant to withdraw -- pardon me, Mr.
Scheideler to withdraw from representing the defendant.
What’s clear to the court is that the pattern in this case is quite stark
and is quite clear: Mr. Vreeland, while having the ability to certainly retain
counsel, retains counsel, inescapably enters into a conflict, fires that
lawyer, and has to seek to retain new counsel; it’s occurred with -- it
occurred with Mr. Steinberg, it occurred with Mr. Henry, and it lastly
occurred with Mr. Scheideler.
With -- with respect to Mr. Henry and Mr. Scheideler, the court is
aware that Mr. Vreeland made allegations that the -- that counsel were
behaving improperly; either incompetently, as Mr. Scheideler articulated, or
the issue of blackmail, as Mr. Henry articulated.
It’s absolutely, positively clear to the court that Mr. Vreeland has the
ability, as Dr. Chamberlin indicated, to dominate and control to seek to try
and, if you would in a very simple term, get his way no matter what the cost,
and he clearly has a working knowledge of the criminal justice system.
In this case, this case has been continued on more than one
occasion. The preliminary hearing originally set for the 24th of February,
2005, was continued. There was a request to continue the May 12th,
2005, preliminary hearing that was denied.
The first trial was set on July the 6th, 200 -- pardon me, on July the
6th, the trial was set for December the 6th of 2005. The defendant -- his
lawyer raised the question of competency. That then tolled that trial date
and the trial date was reset by the court when the court found the defendant
competent on July the 6th. The trial date was reset for February the 22d.
On the day of trial, the trial was continued at the request of the defendant
based upon his representations to the court that he would be unprepared.
A trial date was set for July the 6th. On the 16th of July (sic), the
defendant, in a pro se fashion, asked to continue the trial. This court
denied that request. But on the 27th of June, the court permitted Mr. Henry
to enter his appearance. The court permitted Mr. Henry -- pardon me, Mr.
Vreeland -- pardon me, Mr. Scheideler to enter his appearance on
June 27th, 2006.
On June 27th, 2006, over the objection of the People, the court
granted Mr. Scheideler’s request to continue the trial after his appearance
was entered and trial was then set for the 28th of November.
The court also wants to mention briefly some of the prior motions
filed by the defendant; and the court harkens back, once again, to Dr.
Chamberlin's statements about Mr. Vreeland using any means available to
him in the moment to accomplish his goals, including threatening suicide,
threatening litigation, and intimidating those around him.
Mr. Vreeland, through counsel, filed, I believe, three or four motions
to recuse this court. Those motions were utterly without merit. There was
absolutely no substance to any of those. Mr. Vreeland has also filed in a
pro se fashion other motions that are completely devoid of merit. He filed a
motion to recuse the District Attorney’s Office or disqualify them. He has
responded to court orders in an argumentative fashion.
He has asked in some fashion for a trial to the court after asking this
court on four separate occasions to either grant a request to recuse or to
reconsider the court’s -- the court’s previous denial of the request to recuse.
Mr. Vreeland, when he was pro se, was adamant, adamant in his
desire to represent himself. It starts with Dr. -- at least it’s documented with
respect to Mr. Vreeland in an interview with Mr. -- Dr. -- Dr. Chamberlin in
which he indicated that his desire was to represent himself with Mr. Henry
acting as a consultant.
The defendant’s own pro se pleadings reflect a persistent, adamant
desire to represent himself. In a pleading or a motion encapsuled -- or -- or
pardon me, entitled “Motion to Re-File and Argue” Positions -- pardon me –
“Argue Portions of Previously Filed Motions As Well As New Motions Never
Filed Before” filed on February 9th, the defendant indicated that he had
“requested to represent himself in pro se form for at least 12 months, all on
the record as recent as January 23d, 2006.”
In a motion entitled “Motion to Send Back to Lower Court For the
Purpose of Challenging Probable Cause Based on Full Disclosure and For
New Preliminary Exam,” the defendant indicated on January 28th, 2005,
the defendant made a request to represent himself in the case. That was
denied, according to the defendant, and the defendant had alternate
defense counsel forced upon him. The defendant was left with no
alternative but to accept this counsel as he was, in fact, denied his right to
contact his retained counsel and/or family as required by law.
The defendant went on to mention at paragraph 15 of this particular
motion that in every stage of the court's proceedings, this defendant
mentioned that he wanted to contact his privately-retained attorney or
represent his self. Each and every time this request was mentioned, it was
Paragraph 17, defendant maintains and swears to the fact that the
only reason he ever retained Mr. Steinberg -- Steinberg was because he
was not allowed to contact his own-retained counsel, nor represent himself.
At paragraph 23 (sic), the defendant stated, (as read) “This
defendant maintains that had this court or Judge Marker” -- let me just -when he says “this court,” he’s referring to this court here, Division 1 -“or Judge Marker’s court allowed this Defendant to proceed pro se from the
onset, we would not be where we are today. Now that we have taken 15
months to get this court to give the Defendant a chance to defend himself,
this Defendant requests that he be allowed to defend himself on all matters
anew from the preliminary hearing aspect to the trial, if it gets that far.”
The defendant has in the past had three privately-retained counsel
represent him that this court is aware of. If Mr. O'Donnell appeared at an
earlier time, his name is not reflected on the minutes. It’s equally clear that
each of those retained counsel have filed motions to withdraw based upon
their inability to work with Mr. Vreeland, and at least with respect to two
of them, based upon Mr. Vreeland either threatening them or accusing them
of being incompetent.
Mr. Vreeland now tells the Court that he has contacted the firm of
Haddon, Morgan & Foreman to represent him. Given his history in this
case, any lawyer, any lawyer would be wise certainly to keep in mind their
own desire to be free of a grievance or a lawsuit.
As the court cannot tell whether the law firm of Haddon, Morgan &
Foreman will enter their appearance, this court’s certainly not precluding
them from doing so, but the record reflects quite clearly they have not done
so as of today's date.
What the court will find is that the defendant is, in fact, highly
intelligent. He has a very good understanding of the criminal justice
system and this process. This has been reinforced by counsel having to
withdraw in previous circumstances. Mr. Vreeland knows exactly what it
takes to have counsel withdraw from a case; complain about them,
intimidate them in some way, or allege that you are going to be filing a
lawsuit or a grievance.
Mr. Vreeland, as noted by Dr. Chamberlin, has an extremely high
interest in exercising control, manipulating and dominating. He has
obviously manifested a desire to represent himself in the past. This court
has conducted extensive Arguello advisements of the defendant at the time
in which he insisted, after being advised of -- fully of his rights with respect
to Arguello, that his desire was to represent himself.
The court notes in this case that this matter is a 2004 case that has
not yet been brought to trial. I’ve articulated the prior continuances in this
matter. I’m also mindful of the language in 18-3-411(4) in which our
legislature has mandated that cases of this nature be given a preference for
the -- with respect to them proceeding efficiently through the court system.
Certainly, while Mr. Vreeland has a right to a trial in this case, at this
point in time, given the past machinations of this case, there also are other
rights involved. There are rights of the alleged victim to have this matter
resolved in a timely fashion. There are rights of the People, as articulated
by 18-3-411, to have this matter brought to trial in an efficient fashion.
There’s also an obligation the court system has to do so.
Mr. Vreeland has attempted to create the perfect storm, if you would,
from the standpoint of continually obtaining counsel and then firing them on
the eve of trial. This court finds that there is no good grounds for this court
to continue the trial in this matter. The defendant’s request to continue the
trial is denied.
Should the law firm of Haddon, Morgan & Foreman enter their
appearance, I will obviously consider any motions they may file, but this
matter is set for trial on the 28th of November. It is the court’s intention to
bring this matter to conclusion on that date.
Id. at 43-55. The Court notes that at the end of the November 17, 2006 hearing, when
Applicant asked if he could ask a question and the trial court responded that the “Court is
in recess,” Applicant responded, “Okay, [p]iece of shit.” Id. at 55.
On November 21, 2006, Scott Jurdem, of Buchanan, Jurdem & Cederberg, filed a
notice of conditional appearance based on a continuance being granted and financial
arrangements with Applicant’s mother for payment being complete by December 1, 2006.
Case No. 04CR706 Court File at 000970-71. The trial court entered an order addressing
the conditional appearance and found that the conditional entry of appearance was not an
entry of appearance, and was “just another example of the [Applicant’s] efforts to
manipulate and control these proceedings.” Id. at 000973-75. The trial court also found
that, if Mr. Jurdem entered his appearance unconditionally and with full knowledge that
the trial was scheduled to commence on November 28, 2006, he then could address the
court on behalf of Applicant; otherwise Mr. Jurdem was not counsel of record and the
entry of appearance would not be considered. Id. at 000974-75.
Mr. Jurdem then filed a second entry of appearance and request for a continuance
of trial, id. at 000977-978, and appeared on November 28, 2006, the first day of trial.
Nov. 28, 2006 Trial Tr. at 3 (Docket No. 72-1 at 3). The trial court denied the request for
a continuance and instructed Mr. Jurdem that it would permit him to conduct jury selection
on November 28, and then would recess the trial after jury selection until the morning of
November 30, when the court would proceed with the evidence. Id. at 19-20. The trial
court determined the day and a half that Mr. Jurdem was being given to familiarize himself
with the case was appropriate given the history of the case. Id. at 20-21. Mr. Jurdem
responded that he could not prepare for trial in a day and a half and he would not enter an
appearance. Id. at 24. The trial court then found Mr. Jurdem’s statement a conditional
entry of appearance, found no entry had been made, and told Mr. Jurdem he was
excused. Id. at 28-30.
On November 28, Applicant filed a motion in limine that, among other things,
stated that he did not waive his right to counsel and demanded that his right to counsel be
recognized. Id. at 000980.
Once Mr. Jurdem was excused, the trial court proceeded to address pretrial issues
and the jury selection process. Nov. 28, 2006 Trial Tr. at 30-84 (Docket No. 72-1 at
30-84). During this time, Applicant continued to argue that he was unable to proceed pro
se and wanted representation during his trial. Id. at 48-77. He stated that he did not
understand the voir dire process, but, once the court provided an explanation, Applicant
participated in asking the court questions and providing answers, even though he
continued to state he did not want to proceed to trial without counsel. Id. 72-85. Also, at
the beginning of voir dire, Applicant told the jury that “I’m representing myself because the
Court refused to let me have counsel or call witnesses.” Id. at 87. The trial court
ordered Applicant’s remark stricken. Id.
Applicant refused to participate in voir dire and stated that he was being forced to
proceed by himself. Id. at 205. He further stated he wanted an attorney to “do this” and
“I’m not going to ask any questions.” Id. The court noted that Applicant had waived his
right at that point to ask any questions of the jurors. Id. Nonetheless, Applicant
participated in peremptory challenges and accepted the jury. Id. at 205-09. After
Applicant argued discovery issues and the court returned from a recess to begin opening
statements, Mr. Jurdem appeared to request that he be allowed to appear as advisory
counsel for Applicant. The court agreed with the understanding that the trial schedule
would not be delayed and Mr. Jurdem would not be allowed to ask questions or conduct
direct or cross-examination. Id. at 250-256. Mr. Jurdem continued as advisory counsel
for the remainder of the trial.
In Faretta v. California, 422 U.S. 806, 807 (1975), the United States Supreme
Court held that the Sixth Amendment affords a criminal defendant the right to proceed
without counsel. See United States v. Loya-Rodriguez, a.k.a. Protillo-Loya, 672 F.3d
849 (10th Cir. 2012). The Supreme Court also acknowledged that the right “cut[s]
against the grain of [the] Court’s decisions holding that the Constitution requires that no
accused can be convicted and imprisoned unless he has been accorded the right to
assistance of counsel.” Faretta, 422 U.S. at 832. The Court further recognized that
self-representation is usually inferior to representation by an attorney and cautioned
courts to ensure that the choice of proceeding without counsel is made “knowingly and
intelligently” and only after a defendant is “made aware of the dangers and disadvantages
of self-representation.” Id. at 834-35.
If a court “incorrectly determines that a defendant has elected self-representation,
it has deprived him of the constitutional right to be represented by counsel. But if it
incorrectly determines that the defendant has not elected self-representation, it has
likewise deprived him of a constitutional right.” United States v. Miles, 572 F.3d 832, 836
(10th Cir. 2009). “[I]f a defendant in a criminal proceeding makes an equivocal demand
on the question of self-representation, he has a potential ground for appellate reversal no
matter how the district court rules.” United States v. Treff, 924 F.2d 975, 979 (10th Cir.
A defendant can represent himself only after four conditions are met:
First, the defendant must clearly and unequivocally inform the district
court of his intention to represent himself. Second, the request must be
timely and not for the purpose of delay. Third, the court must conduct a
comprehensive formal inquiry to ensure that the defendant’s waiver of the
right to counsel is knowingly and intelligently made. Finally, the defendant
must be able and willing to abide by rules of procedure and courtroom
Loya- Rodriguez, 672 F.3d at 856 (citing United States v. Tucker, 451 F.3d 1176, 1180
(10th Cir. 2006)) (citations and internal quotation marks omitted). The right to
self-representation is not absolute. United States v. Akers, 215 F.3d 1089, 1097 (10th
Cir. 2000). A court is not obliged to accept every defendant’s invocation of the right to
self-representation and may terminate the right to self-representation even after the right
is unequivocally asserted. Munkus v. Furlong, 170 F.3d 980, 984 (10th Cir. 1999)
Applicant clearly and unequivocally informed the district court on more than one
occasion of his intention to represent himself. On January 31, 2006, he wrote a letter to
the trial court stating he wanted to represent himself. Case No. 04CR706 Court File at
344. At the February 8, 2006 hearing, Applicant told the trial court that he did not want
counsel to represent him and he wanted to proceed pro se. Feb. 8, 2006 Hr’g Tr. at 8.
During the Arguello advisement that followed, the court asked Applicant if he
understood he had the right to be represented by counsel to which Applicant responded
that he did. Id. at 10. When asked if he had any formal legal training, Applicant stated
that he had “17 different certifications.” Id. at 11. Applicant refused the court’s offer to
consult with a public defender before making a decision to waive counsel and represent
himself. Id. Applicant responded to the court’s offer to appoint an alternate defense
counsel by stating that he was “not asking for counsel.” Id. at 14-15 Applicant also told
the court that he understood the risk of not properly representing himself and preparing
his defense. When the court asked again if Applicant wished that the court appoint
counsel to represent him, Applicant stated, “No I do not want appointed counsel.”
Id. at 12.
Based on the court’s questions and Applicant’s responses, the Arguello
advisement sufficiently inquired into whether Applicant’s waiver was knowingly and
intelligently made. It is clear from the record that Applicant “had a sense of the
magnitude of the undertaking and the inherent hazards of self-representation at the time
of his decision to proceed pro se.” United States v. Taylor, 113 F.3d 1136, 1141 (10th
Cir. 1997) (citing United States v. Padilla, 819 F.2d 952, 956 (10th Cir. 1987)).
Starting February 9, 2006, after the Arguello advisement, Applicant filed pro se
fifteen documents that were motions, notifications, or objections. Case No. 04CR706
Court File at 000352-88. He filed pro se an additional six motions on February 16 and
17. Id. at 000429-45 and 448-55. At the February 22, 2006 hearing, the morning trial
was to start, Applicant submitted a motion for continuance to seek advisory counsel and
stated he desired to waive his right to a speedy trial. Feb. 22 Hr’g at 8. The trial was
reset for July 6, 2006. Id. at 51-52.
Up until June 27, 2006, when attorney Scheideler entered an appearance,
Applicant continued to submit motions or requests. Case No. 04CR706 Court File at
000490-494, 000501-502, 000506-516, 000518-526. He even stated in one of the
motions that, as early as November 3, 2005, he wanted to proceed pro se and have his
attorney serve as advisory counsel. Id. at 000548.
At the June 27 hearing, the court found that Mr. Scheideler’s entry was not as
advisory counsel, but rather was an entry of appearance as Applicant’s attorney. June
27, 2006 Hr’g at 9.. Based on the court’s findings, and Applicant’s failure to disagree
with the findings, Applicant revoked his right to self-representation at the June 27 hearing.
From June 27 until November 7, 2006, Mr. Scheideler filed motions and appeared
on Applicant’s behalf at the October 13, 2006 and November 3, 2006 hearings. The
court file for Case No. 04CR706 does not reflect any pro se filings by Applicant from June
27 through November 3, 2006.
On November 7, 2006, Mr. Scheideler filed a motion to withdraw claiming a conflict
of interest. Case No. 04CR706 Court File at 000960. At the November 17, 2006
hearing, Mr. Scheideler stated that Applicant had filed a lawsuit and a grievance against
him. Nov. 17, 2006 Hr’g at 13.
Applicant obtained trial continuances on two occasions, within days of the start of
trial. The first continuance was granted in February 2006 due to an alleged conflict of
interest with Mr. Henry, resulting in Applicant unequivocally asserting he wanted to
proceed pro se. The second continuance was based on Applicant’s request that Mr.
Scheideler be allowed to participate as an advisory counsel days before his trial was to
begin on July 6, 2006. The trial court, however, would not grant a continuance based on
an advisory counsel request, but allowed a continuance for Mr. Scheideler to prepare for
trial as counsel of record. Finally, Mr. Scheideler was allowed to withdraw due to a
conflict of interest shortly before the trial was to begin on November 2006. When Mr.
Jurdem filed a conditional appearance, the trial court denied the request and told Mr.
Jurdem the only way he could enter an appearance was if he could proceed to trial within
a day and a half.
During the June 27, 2006 hearing, the court noted the manipulative aspect of Mr.
Scheideler entering as advisory counsel and being allowed a continuance. June 27,
2006 Hr’g at 9. The trial court relied on Dr. Chamberlin’s mental evaluation to find that
Applicant is highly intelligent, understands the criminal justice system very well, and will
use the means available to him at the moment to accomplish his goals, including
threatening suicide and litigation and intimidating those around him. The court further
determined that Applicant had a right to a trial, but, given the past machinations in the
case, there were other rights involved, including the rights of the alleged victim to have the
matter resolved in a timely fashion.
The state court record supports the CCA’s finding that, following Mr. Scheideler's
withdrawal, Applicant impliedly waived his right to counsel. Applicant repeatedly failed to
maintain a working relationship with counsel, threatened counsel, filed meritless motions,
and fired counsel as the trial date approached. The trial court record also supports the
CCA’s conclusion that Applicant is highly intelligent and was fully aware that he was
manipulating the legal system. Finally, as found by the CCA, the trial court’s decision to
deny a continuance of the November 2006 trial and Mr. Jurdem’s conditional appearance
did not violate Applicant’s Sixth Amendment right to counsel. The requests were
untimely and lacked a showing of good cause.
The Court, therefore, finds that the state court’s decision to dismiss Applicant’s
claim that he was forced to trial without counsel over his objections in violation of his Sixth
Amendment rights was not contrary to or an unreasonable application of any clearly
established rule of federal law as determined by the U.S. Supreme Court or a decision
that was based on an unreasonable determination of the facts. This claim, therefore,
lacks merit, and Applicant is not entitled to relief.
2. Claims Two and Three
In Claim Two, Applicant asserts that when he was arrested the county jail declared
him mentally unstable and prescribed him psychotropic medications, which were mind
altering and included Haldol, Amitriptyline Hcl, Tegretal, Risperdal, Viseral, Cogentin, and
Depakote. Docket No. 8 at 14 Applicant further asserts that, by the time of his trial, he
was addicted and relied on the drugs to function, but the night before his trial the jail
medical staff discontinued the prescribed medications. Id. Finally, Applicant asserts
that he required a brief delay in the trial to overcome the withdrawal side effects, but his
motion was denied in violation of his due process rights. Id.
In Claim Three, Applicant asserts that, based on his mental health evaluations
conducted after the trial and his request for a temporary delay during the trial to overcome
his withdrawal side effects, he raised a substantive due process claim that he was
incompetent to stand trial, which the trial court summarily denied in violation of his due
process rights. Docket No. 8 at 15.
Applicant further asserts in the Reply that before the second day of trial he
requested a temporary delay of proceedings because he was subject to an abrupt
withdrawal of a psychotropic medication, but the trial court denied the motion without a
hearing or directing a medical or psychological examination and only allowed him to drink
a glass of water, even though Applicant complained he was experiencing confusion,
hearing and vision problems, headaches, nausea, irritability, racing heartbeat, anxiety,
restless, and hyperactivity. Docket No. 68 at 38-40, 42. Applicant also asserts that
throughout the trial he raised his medical issues regarding confusion, racing heart, and
high blood pressure and cites to the trial transcript, Nov. 30, 2006 at 256, Dec. 1, 2006 at
8, 13, and 80, and Dec. 11, 2006 at 67, for support of this claim. Id. at 40. Applicant
states that the trial court denied Applicant’s requests for delay and recess because his
performance was adequate. Applicant cites to the trial transcript, Nov. 30, 2006 at 73,
111, and 112, in support of this claim. Id. Applicant contends that he may have been
competent to stand trial, but he was not competent to present his own defense without the
help of counsel, and any claim that he withdrew his own competency motion is contrary to
established federal law. Id. at 40-44.
Finally, Applicant states that the trial court failed to hold a hearing and evaluate his
alleged symptoms at the time of trial. Id. at 42. He further contends that, at his
sentencing hearing on January 22, 2008 his motion to reconsider the ruling that Applicant
had waived counsel and was competent to proceed at trial was denied, even though the
presentence and psychosexual evaluation noted that (1) his verbal abstract reasoning
was borderline retarded range; (2) he was unable to understand information; and (3) he
had moderate Posttraumatic Stress Disorder, severe anxiety, and possible
schizophrenia. Id. Applicant concludes that he has a substantive due process right to
be competent before facing trial and a procedural due process right for proceedings to be
conducted when a competency issue is raised. Id. at 40.
In addressing this claim, the CCA found as follows:
Defendant contends the trial court did not make an adequate inquiry
into his mental and physical competence to proceed at trial and to represent
himself. He argues that the court abused its discretion when it refused his
requests for breaks “due to his medical condition and its related mental
effects.” We are not persuaded.
A defendant is presumed to be competent to stand trial and it is the
defendant’s burden to prove that he or she is not competent. People v.
Palmer, 31 P.3d 863, 866 (Colo. 2001). However, “[p]utting an accused on
trial while he [or she] is incompetent violates due process of law.” Id.
(quoting Jones v. District Court, 617 P.2d 803, 806 (Colo. 1980)).
At the time of defendant’s trial, the applicable statutes provided that
“[n]o person shall be tried, sentenced, or executed if such person is
incompetent to proceed at that stage of the proceedings against him or her.”
Ch. 26, sec. 10, § 16-8-110(1)(b), 1995 Colo. Sess. Laws 76 (repealed by
Ch. 389, sec. 8, 2008 Colo. Sess. Laws 1855, effective July 1, 2008). A
defendant is “incompetent to proceed” if he or she suffers from a mental
disease or defect that renders him or her incapable of (1) understanding the
nature and course of the proceedings against him or her, or (2) participating
or assisting in his or her defense or cooperating with his or her counsel.
Ch. 44, sec. 1, § 39-8-102(1), 1972 Colo. Sess. Laws 225 (later codified at
§ 16-8-102(3); repealed by Ch. 389, sec. 15, 2008 Colo. Sess. Laws 1850,
effective July 1, 2008).
More specifically, to be competent, a defendant must have “a
sufficient present ability to consult with his counsel with a reasonable
degree of rational understanding, and a present rational and factual
understanding of the proceedings against him.” People v. Mondragon,
217 P.3d 936, 940 (Colo. App. 2009) (emphasis omitted) (quoting People v.
Morino, 743 P.2d 49, 51 (Colo. App.1987) (citing Dusky v. United States,
362 U.S. 402, 80 S. Ct. 788, 4 L.Ed.2d 824 (1960)). The Dusky standard
applies equally to whether a defendant is generally competent and whether
a defendant is competent to choose to exercise or waive his or her
constitutional rights. Mondragon, 217 P.3d at 940 (citing Godinez v.
Moran, 509 U.S. 389, 398-99, 113 S. Ct. 2680, 125 L.Ed.2d 321 (1993)
(Dusky standard applies to a defendant’s decision to waive the right to
Under the Dusky standard, a defendant lacks the requisite rational
understanding “if his mental condition precludes him from perceiving
accurately, interpreting, and/or responding appropriately to the world
around him.” Mondragon, 217 P.3d at 940 (quoting Lafferty v. Cook, 949
F.2d 1546, 1551 (10th Cir. 1991)).
A defendant’s competence to stand trial is a question of fact. We
uphold a trial court’s competency determination absent an abuse of
discretion. Palmer, 31 P.3d at 865-66; see also People v. Stephenson,
165 P.3d 860, 866 (Colo. App. 2007) (“Because the trial court is in the best
position to observe the defendant’s general demeanor, its determination of
competency will be upheld absent an abuse of discretion.”). A trial court
abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair. Stephenson, 165 P.3d at 866.
B. Trial Court Proceedings
Before the second day of trial began, defendant asked that the trial
be suspended because his withdrawal from a medication was interfering
with his ability to concentrate and think clearly “at all times.” When the trial
court asked if he was asserting that he was incompetent to proceed,
defendant responded that he was mentally competent but that he was
“medically” unfit to represent himself “fluidly” because he gets dry mouth
and his heart races.
The court denied defendant’s motion, finding that there was
“absolutely no evidence” that defendant was not competent to proceed.
The court allowed defendant to take water with him to the podium and to
readdress the issue several hours later after consulting with advisory
counsel. After consulting with counsel, defendant chose to withdraw his
motion and proceed with trial. Defendant did not raise his motion again
On the third day of trial, defendant said that he was talking fast and
that his heart was racing because he was overdue for his medication.
However, he did not say that it was interfering with his ability to proceed with
the trial. The court called a recess to allow defendant to take his
medication, and an hour later defendant said he was feeling better and that
his heart was no longer racing.
Before closing arguments on the tenth day of trial, defendant said
that he had just taken his medication and that it had not taken effect yet.
As a result, his “blood pressure [was] flying.” Although defendant said that
he did not think it was “a good idea” for him to address the jury because he
did not want “to start talking pretty fast,” he said it was up to the court to
decide whether to proceed. The court noted that the previous time
defendant was delayed in taking his medication, he conducted a
cross-examination of a witness that was “cogent, direct, structured, [and]
had a beginning point and an ending point.” The court then denied
defendant’s request for a recess.
C. Analysis and Conclusion
We conclude that the trial court did not abuse its discretion.
The record shows that defendant voluntarily withdrew his motion after
consulting with counsel and expressly stated that he was mentally
competent to proceed at trial. Defendant did not raise this motion again
and did not argue that withdrawal from his previous medication was
adversely affecting him again during trial.
Similarly, when defendant said that his medications were affecting
him, the court responded by allowing him to drink water, calling recesses to
allow defendant to take his medication, and following up with him
afterwards about how he felt. The record also supports the trial court’s
findings that defendant’s medication was not interfering with his ability to
proceed at trial or represent himself. Our review of the record shows that
defendant was quite effective at cross-examining witnesses, making
objections, arguing his position to the court, and presenting his case to the
jury. This is also evident by the number of defendant’s objections the court
sustained and the fact that the jury did not convict defendant on all charged
We are not persuaded otherwise by defendant’s argument that the
trial court misapplied the correct legal standard when evaluating whether he
was competent to proceed. See Indiana v. Edwards, 554 U.S. 164,
173-74, 128 S. Ct. 2379, 2385-86, 171 L.Ed.2d 345 (2008) (recognizing that
mental illness varies in the degree and defendants’ competency may fall
within a “gray area” in which they are competent to stand trial but not to
represent themselves). Even assuming that the Edwards competency
standard applies not only to diagnosed mental illnesses but also to
temporary side effects from medications, applying a higher standard here
would not alter our conclusion. Despite his expressed frustration with the
court and its rulings, defendant represented himself ably and there is no
evidence in the record to indicate that he was incompetent to proceed at
trial or to represent himself.
We also reject defendant’s contention that the former statutes were
unconstitutional on their face and as applied by the court because those
statutes were not applied to him during trial. On appeal, defendant bases
his argument on the motion he withdrew after consulting with advisory
counsel. Because defendant withdrew this motion, explicitly said he was
not challenging whether he was mentally incompetent to proceed, and did
not raise the issue again during trial, those statutes were not applied to
defendant. Therefore, we need not consider defendant’s constitutional
challenges to those statutes on appeal.
Accordingly, we conclude that the trial court did not abuse its
discretion when it found defendant competent to proceed at trial and to
Docket No. 17-2 at 19-26
“It is well established that the Due Process Clause of the Fourteenth Amendment
prohibits the criminal prosecution of a defendant who is not competent to stand trial.”
Medina v. California, 505 U.S. 437, 439 (1992) (citing Drope v. Missouri, 420 U.S. 162
(1975); Pate v. Robinson, 383 U.S. 375 (1966)). “The right not to stand trial while
incompetent is sufficiently important to merit protection even if the defendant has failed to
make a timely request for a competency determination.” Cooper v. Oklahoma, 517 U.S.
348, 354 n.4 (1996).
“[T]he failure to observe procedures adequate to protect a defendant's right not to
be tried or convicted while incompetent to stand trial deprives him of his [procedural] due
process right to a fair trial.” Drope, 420 U.S. at 172 (citing Pate, 383 U.S. 375). The
U.S. Supreme Court has not “prescribe[d] a general standard with respect to the nature or
quantum of evidence necessary to require resort to an adequate procedure,” Drope, 420
at 172, but it has held that a hearing is required where the evidence before the trial judge
raises a “bona fide doubt” as to a defendant's competence, Pate, 383 U.S. at 385 (“Where
the evidence raises a ‘bona fide doubt’ as to a defendant's competence to stand trial, the
judge on his own motion must impanel a jury and conduct a sanity hearing pursuant to
[the Illinois competency statute at issue].”). See Porter v. McKaskle, 466 U.S. 984, 985–
86 (1984) (Marshall, J., dissenting) (“It is settled that, if evidence available to a trial judge
raises a bona fide doubt regarding a defendant’s ability to understand and participate in
the proceedings against him, the judge has an obligation to order an examination to
assess his competency, even if the defendant does not request such an exam.”) (citing
Drope and Pate); Drope, 420 U.S. at 172–73 (stating that the Pate Court “noted that
under the Illinois statute a hearing was required where the evidence raised a ‘bona fide
doubt’ as to a defendant's competence”); United States v. Newman, 733 F.2d 1395, 1400
(10th Cir.1984) (“A trial court must order a hearing to determine the defendant’s
competency if information comes to the trial court’s attention that raises a bona fide doubt
about the defendant’s competency to stand trial.” (citing Pate, 383 U.S. at 385)). The
Supreme Court also has stated that
evidence of a defendant’s irrational behavior, his demeanor at trial, and any
prior medical opinion on competence to stand trial are all relevant in
determining whether further inquiry is required, but that even one of these
factors standing alone may, in some circumstances, be sufficient. There
are, of course, no fixed or immutable signs which invariably indicate the
need for further inquiry to determine fitness to proceed; the question is often
a difficult one in which a wide range of manifestations and subtle nuances
Drope, 420 U.S. at 180.
The Tenth Circuit has recognized that “[c]ompetency to stand trial is a factual
question.” Bryson v. Ward, 187 F.3d 1193, 1201 (10th Cir.1999). Accordingly, the
Court must “afford the state court’s finding of competency a presumption of correctness
[pursuant to 28 U.S.C. § 2254(e)(1)] unless [Applicant] rebuts the presumption by clear
and convincing evidence.” Wallace v. Ward, 191 F.3d 1235, 1243 (10th Cir. 1999). To
succeed on a procedural competency claim, the burden is on the applicant to present
facts that “establish that a reasonable judge should have had a bona fide doubt as to his
competence at the time of trial.” Gilbert v. Mullin, 302 F.3d 1166, 1180 (10th Cir. 2002).
As stated above, the CCA concluded that,
[e]ven assuming that the Edwards competency standard applies not only to
diagnosed mental illnesses but also to temporary side effects from
medications, applying a higher standard here would not alter our
conclusion. Despite his expressed frustration with the court and its rulings,
defendant represented himself ably and there is no evidence in the record
to indicate that he was incompetent to proceed at trial or to represent
Docket No. 17-2 at 25.
On November 28, 2006, Applicant filed a motion in limine, in which he stated that
the medication he had been given for pain, was not an anti-inflammatory drug, but an
anti-depressant or psychotropic drug that was stopped on November 27 without any
notice. Case No. 04CR706 Court File at 000987. Applicant contended that, as a result,
he was suffering from side effects of the withdrawal of Amitriptyline Hcl and other medical
issues. Id. at 000988. Applicant listed a variety of side effects caused by taking and
then discontinuing the drug as follows: (1) confusion; (2) hearing disorder; (3) dry mouth;
(4) blurred vision; (5) severe headaches; (6) body discomforts; (7) irritability; (8) panic
attacks; (9) rapid and irregular heartbeats; (10) serious anxiety; (11) restlessness; (12)
brief hyper-activity; (13) severe back and muscle pain; and (14) involuntary muscle
movements and shaking. Id. Applicant conceded that these symptoms will “vanish” in
time, but the “original symptoms will not.” Id. Applicant concluded that he was “not
raising a competency matter,” but was placing the trial court “on notice” that due to
medical matters he is not healthy and will not be able to “keep up with the District
Attorney’s case as well as keep focused on the defendant’s own defense.” Id.
On the second day of trial, Applicant stated to the judge that he was not “medically
fit” to complete the ten minutes of his opening statement, but he was not “like a mail bomb
crazy incompetent,” Nov. 29, 2006 Trial Tr. at 30-31. Applicant stated that he was
experiencing a dry mouth and would talk too fast to present the remaining portion of his
opening statement. Id. at 30. Applicant also acknowledged that on November 28,
2006, he was allowed to take water to the podium when he talked. Id
A review of Applicant’s opening statement made on November 28 finds the
twenty-four page transcribed statement was a coherent narrative by Applicant. Nov. 28,
2006 Trial Tr. at 279-302. Prior to starting his opening, Applicant asked if he could bring
the cup of water to the podium while he talked, which he was allowed to do. Id. at 279.
He told the jury he was nervous, id., but on only one occasion did the reporter ask him to
slow down in the twenty-four pages of transcript, id. at 296. At no time during the
opening did Applicant state that he was confused or unable to continue due to any of the
alleged side effects of withdrawal from the psychotropic medications. This Court also
notes that on November 28, 2006, the first day of trial, Applicant indicated he had
completed his statement because the trial court would not allow him to tell the truth.
Id. at 302.
On November 29, 2006, before the jury was called in, Applicant stated that he did
not need advisory counsel to be present for the trial to proceed and requested that the
court consider the three motions in limine that he had filed. Nov. 29, 2006 Trial Tr. at 6-7.
Applicant presented his sequestration of witnesses motion in limine without any indication
that he was suffering from the fourteen noted side effects. Id. at15-18. Similarly,
Applicant presented and argued his second motion in limine concerning a theory of
defense jury instructions. Id. at 20-24. Specifically, Applicant asked the court to allow
him to argue in his opening statement that the court, the prosecution, and law
enforcement were setting him up. Case No. 04CR706 Court File at 000983-985. In
response to the prosecution’s motion in limine regarding impeachment of witnesses,
Applicant also argued his position. Nov. 29, 2006 Trial Tr. at 10-11. Finally, Applicant
composed and submitted the three motions in limine to the trial court on the evening of
November 28, 2006. See id. at 000983-990.
Even if the Court finds temporary side effects from medications are subject to the
same scrutiny as an incompetency finding under Edwards, it is clear that the trial court’s
(1) treatment of Applicant’s motion in limine regarding alleged withdrawal side effects and
(2) decision to proceed, without Applicant completing the remaining ten minutes of his
opening statement, was not a violation of Applicant’s due process rights. Based on the
Court’s review of the trial record for November 28 and 29, 2006, and Applicant’s motion in
limine regarding the effects of discontinuing his psychotropic or antidepressant
medications, there is no evidence to indicate Applicant was incompetent to represent
himself at trial on November 28 and 29, 2006. Nothing in the record supports a finding
that there was a need for a hearing to determine Applicant’s competency because
nothing in the record raises a bona fide doubt about the defendant's competency to stand
trial or to proceed pro se.
Based on all factors before the trial court, including Applicant’s ability to compose
the three motions in limine, and to argue coherently in support of the motions on
November 29, 2004, there was a sufficient basis to deny any request for a delay to
conduct a hearing regarding Applicant’s alleged medical issues. The CCA’s statement
that Applicant’s actions were more a frustration with court rulings than an alleged inability
to competently proceed pro se is well supported by the trial record.
Applicant identifies other parts of the trial record, November 30, 2006 at 256,
December 1, 2006, at 8, 13, and 80, and December 11, 2006 at 67, which he asserts
indicate his due process rights were violated by the trial court in ignoring his claims of lack
of sleep and adequate nutrition, a racing heart, and high blood pressure. Docket No. 68
at 41-42. The November 30, 2006 trial transcript does not refer to Applicant’s withdrawal
side effects, but rather to his need to review certain documents, and to the limited time he
has to do the review and to eat because he has to be in trial. Nov. 30, 2006 Trial Tr. at
256. On December 1, 2006, Applicant states to the court, while the jury was out, that he
is talking “super fast” because he was supposed to have his medication two hours ago,
his “heart is flying,” and he was waiting for someone to “bring them up.” Dec. 1, 2006
Trial Tr. at 8. The same day, Applicant asked if the trial could be stopped when the nurse
brought his medication. Id. at 13. The court told Applicant to ask for a recess if he
needed one. Id. Later on December 1, the trial court asked Applicant to slow down, to
which Applicant indicated he was slowing down as much as possible. Id. at 80. The
trial transcript for the cross-examination that followed on pages 85 through 131, contains
no request by the court or the court reporter for Applicant to slow down. Id. at 85-131.
Finally, on December 11, 2006, Applicant stated that he did not have his blood
pressure medication in a timely manner and, because his heart is racing, he is afraid he
will talk too fast in front of the jury in his closing statement. Dec. 11, 2006 Trial Tr. at 67.
A review of the trial transcript for December 11, 2006, specifically of pages 69-116, which
includes Applicant’s closing statement, shows no request by the court or the court
reporter for Applicant to slow down with his presentation.
None of these record citations raise a bona fide doubt about the defendant's
competency to stand trial or to proceed pro se. Applicant, therefore, has failed to meet
his burden of showing with clear and convincing evidence that the state court=s factual
determinations are incorrect.
Accordingly, the trial court’s refusal to delay trial proceedings to conduct a hearing
regarding Applicant’s medical issue, and the trial court’s decision that Applicant was
medically competent to continue pro se with trial proceedings, did not result in a decision
that was contrary to, or involved an unreasonable application of, clearly established
federal law, or a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceedings. Claims Two and Three,
therefore, will be dismissed for lack of merit.
The Court also notes Applicant’s Reply, for the first time in any postconviction filing
(state or federal), asserts in support of his competency claim that the trial court denied a
further psychiatric evaluation even though the presentence investigative and
psychosexual evaluation noted Applicant had (1) verbal abstract reasoning that was in
the borderline retarded range; (2) an impairment of ability to understand information; (3)
significant Post Traumatic Stress Disorder; (4) severe levels of anxiety; and (5) chronic
tendencies towards disjointed illogical thoughts. Docket No. 68 at 42. Applicant also
contends that the evaluation noted Applicant may have been suffering from schizoid
personality disorder or even schizophrenia. Id. The Court will not address a new claim
or supporting fact when presented to the Court for the first time in a reply. See In re Gold
Res. Corp. Sec. Litig., 776 F.3d 1103, 1119 (10th Cir. 2015). The Court further notes
that the presentence evaluation issue was not presented in Applicant’s direct appeal.
Finally, Applicant has attached two affidavits to the Reply. One affidavit was
prepared by Mr. Jurdem, Applicant’s advisory attorney for the trial, who states that if
Applicant “had been represented by a reasonably well-trained criminal defense attorney,
he would likely have been acquitted at trial.” Docket No. 68-1 at 5. The other affidavit
was prepared by Mr. Heher, Applicant’s counsel retained on direct appeal, who states
that there was no record from which the trial court or the CCA “could legitimately conclude
that [Applicant] had somehow ‘waived’ his right to counsel.” Docket No. 68-2 at 2. The
Court will not consider either affidavit. A review of a state court decision under
§ 2254(d)(1) is limited to the record before the state court. Neither affidavit was at issue
before the trial court. See Cullen, 563 U.S. at 181; Cole v. Trammell, 755 F.3d 1142,
1153 n.3 (10th Cir. 2014); see also Ross v. Thaler, 511 F. App’x 293, 305 (5th Cir. 2013)
(federal district court correctly refused to consider trial counsel’s affidavits).
3. Claim Five
In Claim Five, Applicant asserts that on May 2, 2006 he filed a motion for a bill of
particulars asking the State to explain the exact date and time the criminal acts took place
that he allegedly committed; the motion was granted. Docket No. 8 at 16. Applicant
further asserts that, although he had an alibi and was not at the alleged location at the
date and time indicated in the bill of particulars, the trial court refused to instruct the jury
on the date and location and told that jury the date and location of the crime did not
matter. Id. at 16. Finally, Applicant argues that he was denied a fair trial because he
was stripped of his alibi defense. Id.
Applicant, through counsel, further asserts in his Reply that the trial court granted
the motion for a bill of particulars, rejected the prosecution’s reliance on a “date range,”
and required the prosecution to specify a date, which was “the night in question is October
3-4, 2004. Docket No. 68 at 45. Applicant contends that his entire trial strategy was
based on the prosecution’s specification of October 3-4, 2004 as the date of the offense;
that “fundamental constitutional rights to due process and fundamental fairness require
that a defendant be placed on adequate notice of the precise charges against him”; that
the prosecution is limited to proof at trial of the described areas in the bill of particulars
and he has a right to be placed on sufficient notice of the offense with which he was
charged; and that the trial court allowed the prosecution to use a broad date range, after
requiring them to state a specific date in response to Applicant’s motion for a bill of
particulars, which effectively changed the charging document. Docket No. 68 at 46, 48.
In conclusion, Applicant asserts that the trial court violated his due process rights under
Ex Parte Bains, 121 U.S. 1, 7 (1887), which he says has never been disapproved and
stands for the rule that a court cannot permit a defendant to be tried on charges that are
not made in the indictment against him when the trial court told the jury it could find him
guilty if they found the date of the offense was anytime within a six-week period. Id.
The CCA found as follows:
III. Jury Instructions
Defendant contends the trial court “fail[ed] to enforce the bill of
particulars” when it instructed the jury based on the complaint and
information, and not the bill of particulars. Defendant also contends the
trial court erred by refusing his tendered instruction regarding the limited
purpose of the evidence admitted under CRE 404(b). There were no
A. Law Regarding Jury Instructions
Trial courts have a duty to correctly instruct juries on matters of law.
Bedor v. Johnson, 2013 CO 4, 9; People v. Doubleday, 2012 COA 141, 38.
To determine whether the trial court has performed this duty, we first review
de novo the jury instruction at issue to assess whether the instruction
correctly states the law. Bedor, at 9. If it does, we then review the trial
court’s decision to give the jury instruction for an abuse of discretion. Id.
A trial court abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair. People v. Stewart, 55 P.3d 107, 122 (Colo. 2002).
B. Bill of Particulars
Counts 1 through 9 and count 14 alleged that between September 1,
2004 and October 18, 2004, defendant induced and solicited the victims for
child prostitution, sexually exploited them, and sexually assaulted them. In
response to a motion for a bill of particulars that was granted in part by the
court, the prosecution said that the acts alleged in counts 1 through 9 and
count 14 happened on the same night and “[i]t is believed from the best
information in discovery that the night in question is October 3-4[ ], 2004.”
The implicit premise of defendant’s argument on appeal is that the
prosecution’s bill of particulars amended the date of the offenses alleged in
the charges and required the court to instruct the jury to determine whether
the offenses occurred on the dates stated in the bill of particulars. We are
1. Trial Court Proceedings
The victims testified that the charged acts occurred during the night
of October 3 to 4. During cross-examination, the victims described the
location, time of day, and circumstances of the alleged acts, but had
difficulty remembering some of the details. One victim said that the acts
may have occurred on October 6. Much of defendant’s case focused on
the victims’ credibility and the testimony that the alleged acts may have
occurred on October 6, as to which defendant presented alibi evidence
showing that he was not at home on that date.
Defendant argued that the jury instructions should say that the
prosecution was required to prove that the offenses occurred on October 3
and 4. The court rejected defendant’s argument and instructed the jury
that the charges were alleged to have occurred “between and including
September 1, 2004 and October 18, 2004.”
2. Law Regarding Bill of Particulars
“The right to seek a bill of particulars provides the defendant and the
trial court with a procedure by which the defendant can be provided with
further detail in advance of trial sufficient to facilitate trial preparation.”
Thomas v. People, 803 P.2d 144, 154 (Colo. 1990); see Crim. P. 7(g). For
example, “where there is evidence of many acts, any one of which would
constitute the offense charged, the prosecution may be compelled to select
the transaction on which it relies for a conviction.” Thomas, 803 P.2d at
152. In such circumstances, the prosecution is not required to specify the
exact date the offense took place, but it must specify a particular act “to
ensure unanimous jury agreement that the defendant had committed the
same act and to enable the defendant to prepare a defense to the specific
act charged.” Id.; see People v. Estorga, 200 Colo. 78, 81, 612 P.2d 520,
523 (1980). A bill of particulars is not the same as an amended complaint
and information. Compare Crim. P. 7(g) (bill of particulars), with Crim. P.
7(e) (amending of information); see also Erickson v. People, 951 P.2d 919,
921 (Colo. 1998) (a bill of particulars is an informational tool for the defense
that is “intended to define the charged offense more specifically”).
3. Analysis and Conclusion
We reject defendant’s contention that the court erred when it
instructed the jury that the prosecution was required to prove that the
offenses occurred between September 1, 2004, and October 18, 2004.
In the bill of particulars, the prosecution said “[i]t is believed from the
best information in discovery that the night in question is October 3-4,
2004.” Consistent with those particulars, the witnesses testified that the
offenses occurred on October 3 and 4. These dates are also within the
period alleged in the complaint and information.
When defendant questioned the witnesses, they manifested some
uncertainty about the exact date of the events. One victim agreed that the
offenses may have occurred on another date, and, perhaps, on October 6.
Defendant then attempted to prove that the offenses could not have
occurred on that date because he was not home. From this, defendant
argued that the victims’ description of the offenses should not be believed.
We reject defendant’s contention that the court failed to enforce the
bill of particulars and abused its discretion when it instructed the jury that
the prosecution was required to prove that the offenses occurred during the
period from September 1, 2004 to October 18, 2004, rather than on October
3 and 4. The prosecution’s evidence was consistent with the bill of
particulars and that evidence, as well as defendant’s alibi evidence,
pertained to dates within the period alleged in the complaint and
We conclude that the bill of particulars did not amend the complaint
and information, the court’s instruction properly advised the jury regarding
the elements of the offenses and the prosecution’s burden of proof, and the
court did not abuse its discretion when it declined to modify the instruction.
Moreover, the verdict demonstrates that the jury agreed, beyond a
reasonable doubt that the offenses occurred during the period alleged.
Accordingly, we perceive no instructional error.
Docket No. 17-2 at 9-14.
The Court may grant habeas relief in a challenge to the adequacy of the
information only if the state court error deprived the defendant of fundamental rights
guaranteed by the Constitution. Knewel v. Egan, 268 U.S. 442, 446–47 (1925); Johnson
v. Gibson, 169 F.3d 1239, 1252 (10th Cir.1999). Under the Sixth and Fourteenth
Amendments, a defendant is entitled to fair notice of the criminal charges against him,
and claims of due process violations in not providing such fair notice are cognizable in
habeas corpus actions. See Hunter v. State of New Mexico, 916 F.2d 595, 598 (10th Cir.
1990); Franklin v. White, 803 F.2d 416 (8th Cir. 1986), cert. denied, 481 U.S. 1020 (1987).
The sufficiency of a state charge is determined by the Sixth Amendment right “to be
informed of the nature and cause of the accusation.” United States v. Cruikshank, 92
U.S. 542, 557-58 (1875) (internal quotations and citations omitted); In re Oliver, 333 U.S.
257, 273 (1948); Rabe v. Washington, 405 U.S. 313 (1972).
Where the charge embodies the wording of the statute, which is fully descriptive of
the offense, it is constitutionally sufficient. Potter v. United States, 155 U.S. 438 (1894).
The sufficiency of an information is not a federal habeas issue unless the information is so
deficient that the convicting court was deprived of jurisdiction. Ferguson v. Davies, No.
91-3052, 1991 WL 159849 at *6 (10th Cir. 1991) (unpublished) (citing Heath v. Jones,
863 F.2d 815 (11th Cir. 1989)); Uresti v. Lynaugh, 821 F.2d 1099 (5th Cir. 1987).
The Complaint and Information set forth fourteen counts against Applicant. See
Case No. 04CR706 Court File at 000110-111. The description of each of the counts
referred to the dates between and including September 1, 2004 through October 18, 2004
as the time during which each of the counts took place. Id. at 00012-14.
On April 27, 2006, Applicant filed, pro se, a motion for a bill of particulars, in which
he requested that the prosecution, among other things, “explain exactly what it is alleged
he has done and to whom and SPECIFICALLY WHAT DATE THE ALLEGED CRIMINAL
ACTS TOOK PLACE.” See id. at 000564. Applicant further argued that “[he] needs to
know if The People are alleging that any criminal acts took place between the hours of
approximately 10:30 pm and 8:20 am on the date of October 3, 2004.” Id.
When the motion for a bill of particulars was considered, at the time of the
September 1, 2006 hearing, Applicant was represented by Mr. Scheideler. Sept. 1, 2006
H’rg at 1. Mr. Scheideler stated at the hearing that the specific criminal acts at issue are
any alleged sexual acts between J.R. and N.M. that took place on Saturday into Sunday.
Id. at 3. The prosecution conceded that all sexual acts took place on one night and the
date referred to in discovery is October 3-4, 2004. Id. at 4. Upon briefing by both
Applicant and the prosecution at the September 1, 2006 hearing on the issue, the trial
court decided as follows:
THE COURT: All right. Thank you
What the court’s going to do is the following: The court notes that
there has certainly been discovery produced. The court has reviewed
statements with respect to the events that are in question here. The court
is going to grant a motion for bill of particulars in a somewhat limited sense.
The court finds that while the defendant needs to be put on notice
certainly for the purposes of jeopardy and for the purposes of preparing for
trial, the People have specified about a two-month time period. I believe
that the People are indicating and confessing today that they can narrow
that down for certain offenses, in particular the offenses alleging some kind
of sexual misconduct between the defendant and the two named victims.
The court is going to grant the bill of particulars with respect to those counts.
What I will require is the People to provide within 15 days of today’s
date a more precise time period for the counts in which they are alleging the
sexual misconduct of the defendant. I am not going to specify or require or
list those counts right now. I don’t know if there’s other evidence that might
have taken place on other days that could, for example, be part of an
exploitation count, but I will require certainly the People – I believe we’re all
talking about the same thing when it comes to the sexual conduct or
conduct alleged victims here that there be more specificity. So I’ll require
the People to provide with more specificity the dates for those offenses, and
I’ll require that within 15 days.
Id. at 5-6.
On the same day as the September 1 hearing, the prosecution entered a bill of
particulars that states, “[t]he People inform the court that the acts alleged in counts 1-9
and count 14 all happened on the same night. It is believed from the best information in
discovery that the night in question is October 3-4th, 2004.” Case No. 04CR706 Court
File at 000912. This Court notes that counts 1-6, 9, and 14, pertain to sexual assault or
exploitation of either J.R. or N.M. Id. at 000113.
The colloquy between the trial court, Applicant, and the prosecution regarding the
jury instruction that pertains to the date and place instruction reads as follows:
THE COURT: . . . The next one is the charging instruction, which is,
The [sic] defendant, Delmart Vreeland, is charged with committing the
crimes of inducement of child prostitution, et cetera. Mr. Vreeland, your
position on that instruction?
THE DEFENDANT: First objection I have to it is I want it to
specifically say the date and the place where this alleged crime took place.
And then I also want it to state the exact date that they’re saying this crime
took place; here it says between September 1st, 2004, and October 18th,
2004; but the Bill of Particulars specifically says October 3d to October 4th,
So I -- I want it to be changed so it reflects the specific date and the
specific address, date where the crime -- the date when the crime took
place and the address where it allegedly took place.
THE COURT: Mr. Vahle?
MR. VAHLE: Judge, the charging document speaks for itself and this
tracks the language of the charging document I believe that the People
THE COURT: Mr. Vreeland, reply?
THE DEFENDANT: If the court is going to – is not going to do that, I’d
like to tender my proposed version. I already have it typed out.
THE COURT: All right. Why don't you have Mr. Jurdem submit that.
The court will deny the request to specify date and place finding that
they are -- at this particular point in time, the charging document reflects the
nature of the allegations and when they are alleged to have occurred.
Discrepancies or disputes are factual matters to be addressed and to
be argued to the jury. The court does not believe that location is an
essential element of the offense. In fact, it’s a statewide jurisdictional
question, if you would. So the court will deny the defendant's tendered
instruction. The next instruction –
THE DEFENDANT: Well, Your Honor, do you remember ordering a
Bill of Particulars for this?
THE COURT: I certainly do.
THE DEFENDANT: So I’m wondering -- I don’t understand now why
when the Bill of Particulars, I’m just curious, or -- specifically say October
3d, why he’s now changing it to give them any time span he wants? And in
the closing argument, if the jury is convinced that it didn’t happen, well,
you’re just saying in Douglas County; if something happened somewhere
else and I prove it, then I should be able to say that, you know, narrow it
down to exactly where the crime happened and exactly when it allegedly
happened; not just, hey, if something -- you think something happened any
time between here and there at any given place, you’ll find him guilty.
THE COURT: I believe I’ve addressed that in my ruling and will not -will adhere to its previous ruling.
Dec. 8, 2006 Trial Tr. at 265-68.
Based on the above findings, Applicant had sufficient notice of the charges against
him to prepare his defense. The complaint and information of the charges that pertain to
the sexual assaults and exploitations committed against J.R. and N. M., counts 1-6, 9,
and 14, embody the wording of the statute and are fully descriptive of the offense.
Applicant’s bill of particulars argument, therefore, does not demonstrate that the
complaint and information was so insufficient that the convicting court was deprived of
Applicant further had sufficient notice regarding counts 1-6, 9 and 14 from the
prosecution’s bill of particulars, which informed him that it was “believed from the best
information in discovery that the night in question is October 3-4th, 2004.” Case No.
04CR706 Court File at 000912. Applicant also had access to the discovery, which
addressed the date and place in question. The Court, therefore, finds no basis for
prejudice based on the trial court’s refusal to specify in the jury instruction that the date of
the offenses was not limited to October 3 through 4, 2004.
Even if this Court were to find constitutional error in the trial court’s denial of a
specific date instruction regarding when counts 1-6 , 9 and 14 took place, under Brecht, a
constitutional error does not warrant habeas relief unless the Court concludes it Ahad
substantial and injurious effect@ on the jury=s verdict. Brecht, 507 U.S. at 637. As found
by the CCA, and this Court’s review of the records, the victims testified that the charged
acts occurred October 3 through 4. Even though the victims had difficulty remembering
some details, they were able to describe the location, time of day, and circumstances of
the alleged acts. One victim said that the acts may have occurred on October 6.
Applicant then focused on the victims’ credibility and the testimony that the alleged acts
may have occurred on October 6, 2004, which was subject to Applicant’s alibi evidence
showing that he was not at home on that date. Applicant used the dispute over the date
of offense to impeach the prosecution’s witnesses. He fails to establish that the jury
instruction with a date range of September 1 through October 18, 2004, rather than
October 3 through 4, 2004, was a substantial and injurious effect on the jury=s verdict.
See Brecht, 507 U.S. at 637.
The CCA decision regarding Applicant’s bill of particulars claim did not result in a
decision that was contrary to, or involve an unreasonable application of, clearly
established federal law, as determined by the Supreme Court of the United States and did
not result in a decision that was based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding. This claim, therefore,
lacks merit and will be dismissed.
4. Claim Ten
In Claim Ten, Applicant asserts that the trial court’s refusal to limit the jury’s
consideration of extremely prejudicial evidence admitted under Colo. R. Evid. 404(b) was
error and violated his Sixth and Fourteenth Amendment rights; that the trial court allowed
evidence under Colo. R. Evid. 404(b) and Colo. Rev. Stat. § 16-10-301 that Applicant had
offered money to two witnesses (L.A. and J.O.) to have them pose for pictures and that
the witnesses were under eighteen years of age; that the court allowed the evidence
without an offer of proof or testimony, prior conviction, or any prior allegation or suspicion,
and even allowed the evidence that the two witnesses were under eighteen when they
posed for the pictures; and that the trial court refused to instruct the jury as to the limited
purposes under which they could consider the evidence under Colo. R. Evid. 404(b).
Docket No. 8 at 20.
In the Reply, Applicant, through counsel, asserts that prior to trial the prosecution
moved to admit “other act” evidence regarding Applicant’s relationship with L.A. for
“limited purposes” under Colo. R. Evid. 404(b), which was granted. Docket No. 68 at 51.
Applicant asserts that L.A. testified to sexual contact, drug activity, illegal sharing of
alcohol, and photographing him partially clothed. Id. All of these claims involved
activities that took place between Applicant and L.A. Id.
Applicant claims that he asked the court to instruct the jury that L.A.’s testimony
was admitted for limited purposes under Rule 404(b) and that the “other act” evidence
involving L.A. or J.O., or any dates other than October 3 and 4, be admitted for limited
purposes. Id. Applicant asserts that the trial court refused the tendered instruction and
ruled the “standard or ‘stock’ ” instruction was sufficient. Id. at 52. Applicant also
contends the CCA’s finding that his “naïve comment,” made months before trial, in which
Applicant agreed to the admission of the highly prejudicial “other act” evidence, was
binding on him and was a violation of his right to due process and a fair trial under the
Sixth and Fourteenth Amendments pursuant to Murphy v. Florida, 421 U.S. 794 (1975),
and Irvin v. Dowd, 366 U.S. 717 (1961). Id. Applicant concludes that the admission of
the highly prejudicial other act evidence so infected the entire trial that the resulting
conviction violated his due process rights under Cupp v. Naughton, 414 U.S. 141, 147
(1973), and rendered the trial fundamentally unfair under Lott v. Trammell, 705 F.3d
1167, 1190-91 (10th Cir. 2013). Id. at 53.
The CCA found as follows regarding this claim:
C. Jury Instructions Regarding Other Acts Evidence
Defendant next contends the trial court erred by refusing his
tendered instruction regarding the limited purpose of the evidence admitted
under CRE 404(b). We are not persuaded.
1. Trial Court Proceedings
Before trial, the prosecution gave notice of its intent to present
evidence of similar uncharged acts with three other individuals to show
defendant’s modus operandi; common plan, scheme, or design; intent;
knowledge; motive; preparation; and grooming behavior and to refute a
defense of fabrication. Defendant stipulated to the admission of the
evidence for the purposes offered by the prosecution in its notice.
Each party tendered a proposed jury instruction about the limited
purpose for which the Rule 404(b) evidence was admitted during trial. The
prosecution’s proffered instruction, which was based on the stock Rule
404(b) instruction, stated:
The evidence from [J.O.] about how he and the defendant met
and how their relationship developed was admitted for the
specific purpose of showing modus operandi, common plan
scheme or design, intent, knowledge, motive, preparation,
grooming behavior, and to refute a defense of fabrication.
Defendant’s proffered instruction was also based on the stock jury
instruction, but would have advised the jury:
The evidence from [J.O.] about how he and the defendant met
and how their relationship developed and evidence of Mr.
Vreeland’s sexual or other conduct involving anyone other
[than the victims in this case] or involving any date other [than]
10/03 – 10/04[,] 2004 or place other [than] 8770 Wildrye
Circle, Parker, Colorado, was admitted for the specific
purpose of showing modus operandi, common plan scheme
or design, intent, knowledge, motive, preparation, grooming
behavior and to refute a defense of fabrication.
The court gave the prosecution’s instruction and rejected
defendant’s proffered instruction.
2. Analysis and Conclusion
We perceive no error. Defendant’s proffered instruction would have
advised the jury that it could not consider evidence for purposes that he had
stipulated were proper. Therefore, that instruction was an incorrect
statement of the law. Conversely, the instruction given to the jury correctly
stated the limited purposes for which the other acts evidence could be
considered. See id. Thus, the court did not abuse its discretion when it
gave that instruction to the jury.
Accordingly, we conclude the trial court did not err when it refused
defendant’s tendered instruction regarding the limited purpose of the
evidence admitted under CRE 404(b).
Docket No. 17-2 at 14-16.
As a general rule, federal habeas corpus relief does not lie to review state law
questions about the admissibility of evidence. See Estelle v. McGuire, 502 U.S. 62,
67-68 (1991). The question is whether, “considered in light of the entire record, its
admission resulted in a fundamentally unfair trial.” Knighton v. Mullin, 293 F.3d 1165,
1171 (10th Cir. 2002) (citing McGuire, 502 U.S. at 67-68)). Federal courts may only
interfere with state evidentiary rulings when the rulings in question are “so unduly
prejudicial that it renders the trial fundamentally unfair. . . .” See Lott v. Trammell, 705
F.3d 1167, 1190 (10th Cir. 2013) (quoting Payne v. Tennessee, 501 U.S. 808, 825
(1991)); see also Tucker v. Makowski, 883 F.2d 877, 881 (10th Cir. 1989) (state court
rulings on the admissibility of evidence are not questioned in federal habeas actions
unless they “render the trial so fundamentally unfair as to constitute a denial of federal
constitutional rights.”) (internal quotations marks and citations omitted).
Applicant concedes that violation of state evidence Rule 404(b) may be a matter of
state law, but he claims that the introduction of the highly prejudicial “other act” evidence
without the proper limitation resulted in the violation of his due process rights.
The Tenth Circuit “will not disturb a state court’s admission of evidence of prior
crimes, wrongs, or acts unless the probative value of such evidence is so greatly
outweighed by the prejudice flowing from its admission that the admission denies the
defendant due process of law.” Hancock v. Trammell, 798 F.3d 1002, 1038 (10th Cir.
2015) (quoting Duvall v. Reynolds, 139 F.3d 768, 787 (10th Cir. 1998).
At the preliminary hearing addressing the prosecution’s motion for admission of
“other act” evidence, the following colloquy took place between the court, prosecution,
MR. VAHLE: Judge, the other transaction evidence is my motion. I
provided to the court an extensive -- first off, just in the motion and brief
setting out of what it is that we think the other transaction evidence should
be, and then also I provided copies from discovery of reports and
discussions with various people so that the court could have a little fuller
understanding of the offer of proof. Under 16-10-301 the People may
proceed by offer of proof and -THE DEFENDANT: I don't object to this motion. I want those people
here. So he doesn't have to argue it. I know exactly what it entails, and I
want people here, so I agree.
THE COURT: Hang on for just a second. I want to make certain
we’re all clear on this.
Mr. Vahle is intending to introduce evidence of other transactions in
this case. They are contained in People’s Motion -- pardon me, People’s
notice of intent to admit similar acts. They are outlined in rough detail in
paragraph 3(a), 3(b), and 3(c) of the notice.
Mr. Vreeland, I want to make certain I understand you. What you’re
telling the court is that you’re not objecting at this point in time to the
admission of that evidence in paragraphs 3(a), 3(b), and 3(c) of the notice of
other transaction evidence.
THE DEFENDANT: No, I don't object, your Honor, because once I
get the computer evidence, I would have had to subpoena these same
THE COURT: All right. This is evidence being offered for the
purposes of modus operandi, common plan to show knowledge, motive,
preparation, and grooming behavior, also to refute defenses that may be
I want to make certain that I’m clear on this, Mr. Vreeland. You’re
telling the court that you do not object to the People admitting or -- the
offering of these items into evidence in front of the jury?
THE DEFENDANT: What they’re asking in this motion is basically to
bring in [J.O.] and [C.M.]; am I correct?
THE COURT: You need to go to 3(a), 3(b), and 3(c), Mr. Vreeland.
3(a) deals with [C.M.]; 3(b) deals with [L.A.]; 3(c) deals with [J.O.].
THE DEFENDANT: No, I need them here, so, no, I’m not going to
object. I have to have them here.
MR. VAHLE: And, Judge, I just want to make sure that the record is
clear as to the distinction between having them here and available to testify
and to what it is that we’re going to ask them to testify about.
This motion is as to what it is we’re going to ask them to say, not as to
whether they will be here or not.
THE COURT: I think the notice in itself and the attached documents,
including the transcripts of the interviews, the handwritten statements of the
individuals, go into detail with respect to their prior contact with the
Clearly, it’s the People’s intent, based upon the notice, to offer these
witnesses to provide testimony with respect to other transactions.
So it’s not merely the fact they’re going to be present, Mr. Vreeland.
They’re going to testify – they’re being offered for prior testimony with
respect to what’s contained in paragraphs 3(a), 3(b), and 3(c).
Do you understand that?
THE DEFENDANT: Well, put it in the light – here’s what I’m saying.
If what he’s asking to do in this motion is he wants to admit their statements
without them being here, then I have to object to it.
THE COURT: No, no, no. He’s not offering to have them come into
court and -THE DEFENDANT: I want them in court.
THE COURT: -- let me finish -- and provide the testimony that’s
outlined in 3(a), 3(b), and 3(c). It’s not a question of them just standing
around; they will come in and provide evidence, the People propose, that is
consistent with the notice and consistent with the police reports that have
THE DEFENDANT: And basically what they’re doing is testifying to
what they have already testified to in their written statements and video
THE COURT: Right, but -THE DEFENDANT: That’s exactly what I want.
THE COURT: Understanding that, Mr. Vahle, is there anything else
with respect to a record?
MR. VAHLE: Judge, I understand the court is a little short on time.
Even with the stipulation, I would ask the court to briefly make findings on
the Spoto Garner analysis.
THE COURT: All right. With respect to that then, I think that’s
probably not a bad position for the court to be placed in because the court
has reviewed these items, and I think that Mr. Vreeland has agreed that
paragraphs 3(a), 3(b), and 3(c) be admitted. The court will make an
independent determination with respect to those right now, and particularly
with respect to 3(a) and 3(b) and 3(c).
What we have is a pattern in which the situation, the testimony,
would present itself in each of those paragraphs that the defendant would
use another male, and 3(a) it would be [D.G.], 3(b) it was actual direct
contact with [L.A.], in 3(c) it was direct contact with [J.O.], that he would in
turn offer money to those individuals to have them pose for pictures, he
would discuss with them the fact that he had web sites that featured young
men, that the individuals would frequently be plied with cocaine and alcohol,
and then there would be -- it would result of sexual contact between the
defendant and the three individuals, all who were under the age of 18.
The court notes that there is a similarity between these events, that
the items are being offered in this case, as the court has articulated, to show
a modus operandi, a common plan, to show knowledge, motive,
preparation, and grooming behavior on the part of the defendant to show
his state of mind and also to refute any defenses that might exist with
respect to consent or the fact that he was unaware of the age of the children
in this case.
With respect to that, the court must find pursuant to case law in this
case, which is People v. Spoto at 795 P.2d 1314, People v. Garner, and
also based upon the statute of 16-10-301, in which our general assembly
has indicated that this type of other activity is typically relevant and highly
probative and is -- there is a legislative fiat, if you would, with respect to the
admissibility of these items, provided they meet the requirements of Spoto
and Garner, which is the evidence must be relevant to a material fact, the
evidence must be logically relevant, it must have a relevance independent
of defendant’s bad character, and the probative value of the evidence must
not be substantially outweighed by the danger of unfair prejudice.
With respect to each of the three incidents, the court notes and
incorporates the statements that were made by the individuals that are
attached to the People’s notice that the evidence is being offered to
establish, as the court indicated before, that there is a method of operation,
or a common plan, that involves the defendant having sex with young men,
usually with cocaine or alcohol being involved, and starting out initially with
photographs being taken of the young men for a Website, the young men
being offered money to pose for those photographs.
There’s a modus operandi, or common plan here, that also goes to
the defendant’s state of knowledge, his motive, preparation, and grooming
The evidence must be logically relevant. The court will find that the
evidence offered under each of these three circumstances is logically
relevant. The court will also find that with respect to [L.A.] and [J.O.] that
these also occurred close in time to the events that are alleged to have
taken place in this case, and I think also to a certain extent are a part of the
res gestae of the events that occurred involving [J.R.] and [N.M.], the two
alleged victims in this case. The court will find that the evidence is relevant
to the issues the court has just raised.
The evidence must have a relevance independent of the defendant’s
bad character. The court will find that it does, in fact, have relevance
independent of the alleged bad character of the defendant in that it goes to
the issues the court has just previously articulated.
And the court will find that the probative value of the evidence is not
substantially outweighed with the danger of unfair prejudice. Certainly any
evidence offered by the People against the defendant is being done to
further their case and prejudice the defendant. The question has to do with
In this case the court has found that there is an argument with
respect to the method of operation, or common plan, knowledge, motive,
preparation, grooming behavior, state of mind of the defendant, and to
refute the defenses, and the court finds that that is something that
outweighs the danger of any unfair prejudice.
So based upon the defendant’s statements to the court today and
the court’s own review of the records and findings just made, the court will
admit the other transaction evidence being offered in paragraphs 3(a), 3(b),
and 3(c) of the People’s notice.
Feb. 8, 2006 Hr’g. at 38-44.
At the time of J.O.’s testimony, the colloquy between the trial court, the
prosecution, and Applicant was as follows:
THE DEFENDANT: I’d like to know how they’re going to proceed
with him on this? The problem that I have is -- I didn't bring it up before,
because he was bringing up him and [C.M.]. Now, we know [C.M.] might
not make it here, so I've offered that maybe we'll stipulate on something as
far as he goes, but we'll – we’ll get to that later.
But I don't see how he can offer [J.O.] as a 404(b) witness based on
what he just said when all these alleged acts, if they took place, they took
place in another country, which is Canada; and in that country, it wouldn't be
a bad act, it would be 100 percent completely legal. I mean, even the
drinking age there is 18 and 19, depending on the province that you're in, it
bounces from each one.
So he’s trying to say that these are bad acts and it’s wrong and it’s a
crime. Well, it might be wrong or a crime here, but -- if it happened here;
but the problem is is that it didn’t happen here. [J.O.’s] never stated in any
interview that anything has ever happened with him in the United States of
America. His testimony was, in fact, that one time four years ago in
Canada something happened, but after that, that was it. We’ve been
roommates ever since.
So I don’t see how there’s any modus operandi in there. I don’t
even see any prior bad act because there’s nothing illegal there. If it was to
take place, the age of consent there in Canada is definitely 16 years old, so
it wouldn’t make a difference if he’s already testified right here in the court
that he was 17 when he met me.
Excuse me? Okay.
Everything he just said he was entering this upon would be based
upon some form of illegal act, whether it was in this country, or maybe in
another, or it would be based on basically an illegal act in this country. But
if he has no offer of proof to prove that there was an illegal act that he can
prove to show --excuse me.
THE DEFENDANT: I’ll try to word it the way that – I’ll try to word it this
way, it’s better. If the act that [J.O.] testifies of -- testifies to was not an
illegal act, then [J.O.’s] testimony to that shouldn’t be used as 404(b). If
[J.O.] -- because the prejudice against me with the jury outweighs the
probative value. And [J.O.’s] already made it clear that nothing’s ever
happened in this country. He’s made it abundantly clear that he has
absolutely no knowledge of this case and any activity between myself or
[J.R.], specifically, at all. He’s made it very clear in two videotapes, and
then in another videotape he says, well, maybe this may have happened,
but he doesn’t know.
So I don’t have a problem with [J.O.] testifying, but to anything that
may have happened out of this country, if it's not illegal, then I don't think Mr.
Vahle should be able to enter it to the jury and say, well, it’s bad here, so it
has to be bad if he did it there.
If the speed limit is 90 miles an hour down QEW in Toronto and the
speed limit here is 60 miles an hour, I don’t think that I’m breaking the law
and they can’t use me speeding over there here to prove to the jury that I did
something bad here, you know? Everything that he’s using for [J.O.] is
irrelevant when it comes to 404(b), and I don't think they're going to be able
to bring [C.M.] in at all.
THE COURT: With respect to this, the court has previously ruled on
this issue. Mr. Vreeland has previously confessed the admissibility of this
evidence. The court need make no further record with respect to this.
The court independently found this – these matters to be relevant pursuant
to 404(b). The defendant himself confessed the admissibility of these
items, so we’re not here debating that point.
Nov. 30, 2016 Trial Tr.at 158-161.
Prior to the prosecution’s direct examination of J.O. that addressed any “other act”
evidence the trial court gave the following limiting instruction to the jury.
THE COURT: All right. Ladies and gentlemen of the jury, certain
evidence may be admitted for a particular purpose only and for no other.
The evidence you are about to hear is of such nature. It may be used as
evidence for the purpose of showing modus operandi; common plan,
scheme, or design; knowledge; motive; intent; preparation; grooming
behavior; and to refute a defense of fabrication. Thank you.
Id. at 177.
No limiting instruction was given at the time L.A. testified. Dec. 5, 2006 Trial Tr. at
10-41 and 65-70. However, the Court notes the trial court found, as stated above, when
granting the prosecution’s motion regarding admissibility of “other act” evidence, that
with respect to [L.A.] and [J.O.] that these also occurred close in time to the
events that are alleged to have taken place in this case, and I think also to a
certain extent are a part of the res gestae of the events that occurred
involving [J.R.] and [N.M.] the two alleged victims in this case.
Feb. 8, 2006 Hr’g at 43-44. As stated by the CCA, the instruction Applicant submitted
would not have allowed the jury to consider L.A.’s testimony as part of the “res gestae” of
the events that pertained to the two victims. The Court also notes that, to the extent
Applicant argues he naively agreed to the admission of highly prejudicial “other act”
evidence, such argument is without basis. As set forth above, Applicant was specifically
instructed by the trial court about the purpose of the prosecution’s motion seeking
admission of “other act” evidence and adamantly claimed he understood the
prosecution’s request and agreed to it.
Based on the above findings, the CCA decision regarding Applicant’s jury
instruction claim did not result in a decision that was contrary to, or involve an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States, and did not result in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the state
court proceeding. This claim, therefore, lacks merit and will be dismissed.
In summary, the Court finds that Applicant is not entitled to relief on any of his
remaining claims. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
' 2254, Docket No. 8, is denied and this case is dismissed with prejudice. It is further
ORDERED that there is no basis on which to issue a certificate of appealability
pursuant to 28 U.S.C. ' 2253(c). It is
ORDERED that leave to proceed in forma pauperis on appeal is denied. The
Court certifies pursuant to 28 U.S.C. ' 1915(a)(3) that any appeal from this Order would
not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). If
Applicant files a notice of appeal he must also pay the full $505 appellate filing fee or file a
motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth
Circuit within thirty days in accordance with Fed. R. App. P. 24.
DATED December 20, 2016.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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