Peo v. Shady

22CA1788 Peo v Shady 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1788

City and County of Denver District Court No. 21CR3836

Honorable A. Bruce Jones, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Stephen A. Shady,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE SCHOCK

J. Jones and Welling, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 18, 2024

Philip J. Weiser, Attorney General, Abigail M. Armstrong, Assistant Attorney

General Fellow, Denver, Colorado, for Plaintiff-Appellee

Cynthia A. Harvey, Alternate Defense Counsel, Aurora, Colorado, for

Defendant-Appellant

1

¶ 1 Defendant, Stephen A. Shady, appeals his conviction for felony

menacing. We affirm the judgment.

I. Background

¶ 2 The charge in this case stems from an altercation between

Shady and William Ewoldt after Shady’s vehicle blocked Ewoldt’s on

a city street. Although the nature and details of the altercation

were disputed at trial, the evidence generally showed the following.

¶ 3 Shady was driving a pickup truck ahead of Ewoldt and turned

right onto a street that was partially closed for construction. After

making the turn, Shady parked his truck in such a way that

Ewoldt, who was making the same right turn, did not believe he

could get by. Ewoldt honked his horn at Shady several times.

¶ 4 Eventually, Shady got out of his truck and approached Ewoldt,

who was still in his vehicle. According to Ewoldt, Shady began

yelling at him and asked him to get out of the car so they could

“settle this now.” Shady then went back to his truck and got a

knife, which he waved around as he continued to yell at Ewoldt.

Ewoldt called 911, and Shady put the knife back in the truck.

¶ 5 Shady’s version of events was slightly different. He claimed

that he was not blocking Ewoldt’s vehicle and initially approached

2

Ewoldt only to tell him he could get around Shady’s truck.

According to Shady, Ewoldt was yelling and cussing at him and

revved his engine, which Shady took as a threat. Shady said that

when Ewoldt reached to get his phone, he thought Ewoldt was

getting a gun and only got the knife at that point to protect himself.

¶ 6 Shady was charged with one count of felony menacing under

section 18-3-206(1), C.R.S. 2021, and the case went to a jury trial.

Ewoldt and Shady both testified at trial, as did the two responding

officers and a bystander who had seen Shady with the knife.

¶ 7 Shady’s primary defenses were that he did not threaten Ewoldt

and that he had acted reasonably in self-defense because he

believed Ewoldt had a gun. In support of this self-defense

argument, defense counsel stressed Shady’s military training,

which put him in a “combative mindset” when faced with a threat,

and his background “growing up in the south in Alabama . . . where

if you saw somebody reaching towards their glove compartment,

that meant that that was probably a gun.” The prosecution argued,

among other things, that Shady was the initial aggressor.

¶ 8 The jury found Shady guilty, and the district court sentenced

him to two years of probation.

3

II. Bergerud Hearing

¶ 9 Shady first argues that the district court violated his right to

due process and right to effective assistance of counsel by denying

what he calls his motion for substitution of counsel. We disagree.

A. Additional Background

¶ 10 Near the end of the first day of trial, defense counsel advised

the court that Shady “believes that there’s a conflict of interest and

would like to raise a Bergerud issue.” See People v. Bergerud, 223

P.3d 686 (Colo. 2010). Counsel explained that he did not believe

there was a conflict of interest but that Shady had the right to

express those concerns. The court ordered a Bergerud hearing

before a different judge to determine whether there was a conflict.

¶ 11 At the Bergerud hearing, defense counsel explained that the

genesis of the hearing was Shady’s “concerns about certain

questions” that he wanted counsel to ask the testifying officer and

that counsel refused to ask because he believed they were

irrelevant. Counsel asserted that, despite this disagreement, there

was no conflict because the theory of defense — denial and self-

defense — remained “the same and intact” without those questions.

4

¶ 12 Shady agreed with defense counsel’s explanation of his

concerns. He elaborated:

I wouldn’t say there’s too much of a conflict, I

guess, or conflict of interest. . . . I just feel like

there’s certain things that I would like to ask

and he is saying to me that he doesn’t think

that he should because they’re not relevant to

the case . . . . In that sense . . . there’s a

conflict of interest.

¶ 13 Shady confirmed that he had no concerns with his counsel’s

representation until the officer testified. He also confirmed that his

concern did not “rise[] to the level that would prevent [him] from

continuing to proceed with [defense counsel] as his attorney”:

I have liked what he’s done with respect to the

case now and prior. I was just hoping that

maybe he could budge him and ask some of

these questions, but I also don’t want to

overstep him or jeopardize myself.

¶ 14 At that point, the district court attempted to summarize the

consequences of Shady’s request:

Well, let’s talk about that, okay? Because

when you request to be — raise a conflict with

your attorney at this late stage — I mean

you’re in the middle of the trial now, right? —

and the prosecution has begun. The jury’s

been impaneled. And in some circumstance, if

the Court were to find that this dispute rises to

the level of a conflict and a breakdown — a

complete breakdown in your communication

5

with your attorney, then the options would

only be that you would proceed without an

attorney . . . if you felt that strongly about it.

So help me understand. It doesn’t sound like

you feel that strongly that [defense counsel]

cannot continue to represent you in this

case. . . . You just want . . . to be heard on

your concern about the questioning of this

particular witness.

¶ 15 Shady agreed. He simply wanted clarity on how it would

jeopardize him to ask his desired questions. Those questions

concerned (1) the officer’s placement of him in a police car alone

rather than with another officer, as the officer had testified; and

(2) the officer’s response to seeing Shady’s military identification.

Shady believed these questions would show that the officers had

lied and mistreated him. Defense counsel explained that the first

proposed question was irrelevant, but he agreed to ask the second.

¶ 16 The Bergerud court again confirmed that Shady was satisfied

with his counsel’s representation and that his disagreement with

counsel was confined to this “one area of questioning.” It explained

that “lawyers in this context typically are given great leeway in

terms of judgment regarding trial strategy.” The court then

“den[ied] the request,” finding that “there is no breakdown in

communication,” but just “a simple disagreement regarding trial

6

strategy.” It further concluded that none of Shady’s constitutional

rights were impaired by defense counsel’s chosen strategy.

B. Applicable Law and Standard of Review

¶ 17 A defendant is not entitled to substitute court-appointed

counsel except upon a showing of “good cause, such as a conflict of

interest, a complete breakdown of communication or an

irreconcilable conflict.” Ronquillo v. People, 2017 CO 99, ¶ 19

(citation omitted). Thus, when a defendant objects to court-

appointed counsel, the district court must inquire into the reasons

for the dissatisfaction. Bergerud, 223 P.3d at 694. This inquiry is

particularly important when the defendant’s request comes “on the

eve of trial or under circumstances which are likely to result in a

continuance.” People v. Arguello, 772 P.2d 87, 94 (Colo. 1989).

¶ 18 The substitution of court-appointed counsel upon good cause

“protects only the right to effective assistance of counsel.”

Ronquillo, ¶ 19. That means that substitution is not warranted

unless “the defendant has a well-founded reason for believing that

the appointed attorney cannot or will not competently represent

him.” People v. Johnson, 2016 COA 15, ¶ 30. Disagreements about

7

trial strategy do not establish good cause for substitution of

counsel. People v. Kelling, 151 P.3d 650, 653 (Colo. App. 2006).

¶ 19 Determining whether substitution of counsel is warranted

“requires an inquiry laden with factual determinations.” Bergerud,

223 P.3d at 694. At the threshold of this inquiry, the court must

consider “the type of limitation on counsel that is implicated by the

defendant’s request in order to locate the dispute within the

landscape of Sixth Amendment precedent and properly assess any

constitutional concerns.” Id. at 695. In assessing the

constitutional implications of the defendant’s request, a court may

consider four factors: (1) the timeliness of the motion; (2) the

adequacy of the court’s inquiry into the defendant’s complaint;

(3) whether the attorney-client conflict is so great that it resulted in

a total lack of communication or otherwise prevented an adequate

defense; and (4) the extent to which the defendant substantially and

unreasonably contributed to the underlying conflict. Id.

¶ 20 We review the denial of a defendant’s request for substitute

court-appointed counsel for an abuse of discretion. Johnson, ¶ 29.

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C. Analysis

¶ 21 Shady frames his argument as one that the district court erred

by denying his motion for substitution of counsel. But Shady did

not request substitute counsel. To the contrary, he told the court

that his concerns did not require new counsel. He simply wanted

the court to intervene and persuade his attorney to ask cross-

examination questions the attorney did not want to ask. Thus,

even broadly construing Shady’s statements at the Bergerud

hearing, it is not clear that there was any request for the Bergerud

court to deny. See Bergerud, 223 P.3d at 694, 696-97; People v.

Session, 2020 COA 158, ¶ 18 (noting that a Bergerud hearing is

generally required “upon receiving a motion to substitute counsel”).

¶ 22 In any event, there was no good cause for substitution. The

so-called “conflict” — which Shady said was “[not] too much of a

conflict” — was that he wanted his attorney to ask certain questions

that his attorney believed were irrelevant. There was no breakdown

of communication, complete or otherwise. See Ronquillo, ¶ 19.

Shady was generally satisfied with the representation. And the

disagreement concerned only an ancillary issue of trial strategy. It

did not implicate any of Shady’s substantive constitutional rights.

9

Cf. Bergerud, 223 P.3d at 702-03, 706 (holding that defense

counsel’s intent to “completely contradict [defendant’s] testimony”

or to “persist in wholly undermining the believability of his

testimony” would usurp defendant’s constitutional right to testify).

Indeed, Shady does not argue on appeal that there was good cause.

¶ 23 Instead, he focuses entirely on an erroneous statement of law

by the Bergerud court. After Shady described the nature of his

disagreement with counsel, the court told him that “in some

circumstance, if the Court were to find that this dispute rises to the

level of a conflict and . . . a complete breakdown in your

communication with your attorney, then the options would only be

that you would proceed without an attorney.” This was incorrect.

When a defendant establishes a conflict of interest or a complete

breakdown in communications that undermines the right to

effective representation, the defendant is entitled to substitute

counsel, even if it means postponing trial. Arguello, 772 P.2d at 94.

¶ 24 But the court’s misstatement of the law was harmless because

there unquestionably was no conflict or complete breakdown of

communication rising to the level of good cause — as Shady himself

acknowledged. Moreover, the request (to the extent it was one)

10

came near the end of the first day of trial, after jury selection,

opening statements, and the testimony of two witnesses. See

Bergerud, 223 P.3d at 698 (“Any request for new counsel that is

made once the trial has begun puts a trial court in a difficult

position.”). Under these circumstances, although the court framed

the issue incorrectly, it was fundamentally correct that Shady’s only

options at that point were to continue with existing counsel or

proceed pro se. See Arguello, 772 P.2d at 94. Without good cause,

Shady was not entitled to substitute counsel. Ronquillo, ¶ 19.

¶ 25 We reject Shady’s contention that the Bergerud court’s

misstatement infected the entire hearing. By the time the court

made that statement, it had already inquired into the basis of

Shady’s complaint, and Shady had confirmed that (1) there was no

substantial conflict; (2) his complaint was limited to his attorney’s

refusal to ask particular questions; (3) he had no prior concerns

with his attorney; and (4) he was satisfied with his attorney’s

representation. That was enough to establish the absence of good

cause for substitution, regardless of what came next. See Bergerud,

223 P.3d at 695-96 (noting that the purpose of the inquiry is to

determine the “facts underlying the defendant’s dispute” and

11

provide an adequate record for “reviewing the constitutional

implications” of defendant’s request). Shady’s subsequent

statements merely elaborated on what he had already said.

¶ 26 Shady also asserts that the Bergerud court’s misstatement of

the law was structural error requiring reversal. But structural error

exists when a defendant elects to proceed pro se after a request for

substitution of counsel is denied, such that there is a “complete

denial of [the defendant’s] right to counsel.” Id. at 696. When the

defendant proceeds with court-appointed counsel, any error in

denying a request for new counsel is reviewed for harmless error.

Id. The court in this case did not even err by denying the request.

It simply misdescribed a legal standard that it correctly applied.

There was thus no constitutional violation at all.

III. Prosecutorial Misconduct

¶ 27 Shady also argues that the prosecutor committed misconduct

during rebuttal closing argument by shifting the burden of proof.

In support of this argument, Shady simply quotes a two-page

excerpt of the trial transcript, without identifying any specific

statements he contends were improper. We see no misconduct.

12

A. Additional Background

¶ 28 Defense counsel argued in closing that, based on Shady’s

military training and experience “growing up in the south in

Alabama,” it was reasonable for him to believe that Ewoldt was

pulling a gun on him and “to do anything that he could to defend

himself.” He argued that Shady acted reasonably by grabbing a

knife because it was “inherently a lesser degree of force” than a gun.

¶ 29 In rebuttal closing, the prosecutor argued that even given

Shady’s military training and assuming he believed Ewoldt had a

gun, it was not reasonable for Shady to return with a knife:

Mr. Shady believes that Mr. Ewoldt might have

a gun. Even if we believe Mr. Shady, for him

to go to his truck that is like he said and is

very clear, very much larger than Mr. Ewoldt’s

Subaru, for him to go to this truck and only

grab a knife, sure, that’s a lesser . . . degree of

force . . . but is it actually reasonable for

someone to grab a knife when there’s someone

else . . . pointing a gun at you? Is that

actually reasonable or is it more reasonable for

him to hide or sit in the car or maybe because

he — in his Army training —

¶ 30 At that point, defense counsel objected to “burden shifting.”

The court overruled the objection and the prosecutor continued:

Or because he was trained to actually fight

and never run away, wouldn’t the reasonable

13

thing to do — to get in his large truck that is

clearly larger and safer than Mr. Ewoldt’s

Subaru. It doesn’t mean he’s running away.

He’s actually protecting himself with protection

being a larger truck. Wouldn’t that be more

reasonable?

Now even if you believe that based on his Army

training — combat training — . . . that

grabbing of a knife was reasonable, it frankly

doesn’t really matter because Mr. Shady was

the initial aggressor. He was not only the

initial aggressor, but he was the only aggressor

in this case.

Members of the jury, think about what Mr.

Shady said to the 911 operator and what Mr.

Shady couldn’t say or admit in court today.

Think about how he never told the 911

operator that Mr. Ewoldt revved his engine.

There was no threat to Mr. Shady and when

Mr. Shady grabbed his ten inch blade knife

and walked up to Mr. Ewoldt’s Subaru, he

committed the crime of menacing with a

deadly weapon . . . .

B. Applicable Law and Standard of Review

¶ 31 We apply a two-step analysis to claims of prosecutorial

misconduct. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

We first determine “whether the prosecutor’s questionable conduct

was improper based on the totality of the circumstances.” Id. If it

was, we then consider whether that conduct warrants reversal. Id.

14

We review preserved claims of prosecutorial misconduct for

harmless error

1

and unpreserved claims for plain error. Id. at 1097.

¶ 32 To determine whether a prosecutor has impermissibly shifted

the burden of proof, we must “evaluate the strength of the

prosecution’s burden-shifting evidence or comment in light of the

entire record to assess whether the burden was actually shifted.”

People v. Santana, 255 P.3d 1126, 1131 (Colo. 2011). When a

prosecutor makes comments implying that the defendant carries

the burden, that assessment turns on the degree to which (1) the

prosecutor specifically argued that the defendant carried the

burden of proof; (2) the prosecutor’s actions constituted a fair

response to defense counsel’s comments; and (3) the jury was

informed by counsel and the court about the defendant’s

presumption of innocence and the prosecution’s burden of proof.

Id. at 1131-32. A prosecutor does not impermissibly shift the

burden of proof by “comment[ing] on the lack of evidence confirming

defendant’s theory of the case.” Id. at 1132 (citation omitted).

1

The parties disagree as to whether the constitutional or

nonconstitutional harmless error standard would apply. Because

we conclude that there was no misconduct, we need not decide this

issue.

15

C. Analysis

¶ 33 Although Shady reiterates his trial counsel’s objection that the

prosecutor’s rebuttal closing argument amounted to burden

shifting, he does not identify what specific comments he contends

shifted the burden or why. It is the appellant’s responsibility to set

forth “a clear and concise discussion of the grounds upon which the

party relies in seeking a reversal . . . of the judgment.” C.A.R.

28(a)(7)(B); see also People v. Sanders, 2023 CO 62, ¶ 16. When an

appellant fails to offer supporting argument, we will not assume the

mantle of doing so. Sanders, ¶ 16; see also People v. Duran, 2015

COA 141, ¶ 20 (noting that party may not shift to the court “the

task of locating and synthesizing the relevant facts and

arguments”). By failing to address how the prosecutor’s comments

shifted the burden of proof, Shady does not develop this argument.

See People v. Cuellar, 2023 COA 20, ¶ 44 (declining to address

prosecutorial misconduct claim where defendant did not discuss

how the challenged statements violated his right to counsel).

¶ 34 In any event, we see nothing in the prosecutor’s comments

that impermissibly shifted the burden. The only preserved

objection was to the prosecutor’s statement that it would have been

16

more reasonable for Shady to sit in his truck than to grab a knife

and return. The prosecutor did not say, or even imply, that Shady

bore the burden of proving his actions were reasonable. She simply

argued, based on inferences from the facts in evidence, that Shady’s

actions were not reasonable. See Santana, 255 P.3d at 1132

(noting that the prosecution may properly make an argument about

the evidence and inferences that can be drawn from the evidence).

Those comments were not only consistent with the prosecution’s

burden of proof but were a fair response to defense counsel’s

argument that Shady’s actions were reasonable. See id. at 1131.

¶ 35 Moreover, the jury was repeatedly “informed by counsel and

the court about the defendant’s presumption of innocence and the

prosecution’s burden of proof.” Id. at 1131-32. The district court

instructed the jury that (1) Shady was presumed innocent; (2) the

prosecution had the burden of proof beyond a reasonable doubt;

and (3) the prosecution had the burden of disproving, beyond a

reasonable doubt, Shady’s “defense of person” affirmative defense.

¶ 36 The prosecutor similarly reminded the jury of the People’s

burden of proof — both the burden of “proving each and every

element of the charge beyond a reasonable doubt” and “the burden

17

of disproving at least one” of the elements of Shady’s affirmative

defense — in the initial closing. And the prosecutor began the

rebuttal closing by emphasizing that the People “embrace[d] the

burden of proving this case beyond a reasonable doubt.”

¶ 37 Thus, in light of the entire record, we conclude that the

prosecutor in no way implied that Shady had the burden of proof,

much less improperly shifted the burden of proof. See id. at 1131.

2

IV. Disposition

¶ 38 The judgment is affirmed.

JUDGE J. JONES and JUDGE WELLING concur.

2

To the extent Shady asserts that the prosecutor expressed an

improper opinion as to the veracity of Ewoldt and Shady, that

argument too is undeveloped (and unpreserved), and regardless, we

perceive no misconduct. See People v. Liebler, 2022 COA 21, ¶ 58

(“[A] prosecutor may point to circumstances that raise questions or

cast doubt on a witness’[s] testimony and draw reasonable

inferences from the evidence as to the credibility of witnesses.”).