Peo v. Grubb

21CA2042 Peo v Grubb 12-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA2042
El Paso County District Court No. 18CR793
Honorable Deborah J. Grohs, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Antoinette Michelle Grubb,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE KUHN
Yun and Berger*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 12, 2024

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Rachel C. Funez, Alternate Defense Counsel, Glenwood Springs, Colorado, for
Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2024.
¶1 Defendant, Antionette Michelle Grubb, appeals her conviction

for violation of a custody order. We affirm.

I. Background

¶2 Grubb was married to Ivan Kazay, and together they had a

child, D.G. After their marriage ended, the domestic relations court

designated Kazay as D.G.’s primary parent, with Grubb having

parenting time every other weekend during the school year and

rotating weeks during the summer. Additionally, in an order issued

right before the 2017 Christmas holiday, the domestic relations

court awarded Grubb parenting time with D.G. for the first week of

the Christmas break. It ordered that Kazay’s parenting time would

start at noon on Christmas Day and would continue through the

remainder of the holiday.

¶3 Grubb did not return D.G. to Kazay on Christmas Day. She

testified at trial that she did not do so because she felt like D.G.

was in danger. That same day, Grubb filed a police report alleging

that Kazay abused D.G. The responding officer initiated a case

report and explained to Grubb that she needed to follow up with the

court for temporary custody orders. Grubb did not file a motion or

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make a report to the domestic relations court either through

counsel or pro se.

¶4 Grubb then withheld D.G. from attending school for the month

after Christmas, and Kazay filed a complaint with the police in late

January. Detective Brad Krause and an El Paso County

Department of Human Services caseworker contacted Grubb, who

stated that she was keeping D.G. safe and did not care about

violating the court order. Grubb also explained that she did not

contact the police because she was scared of them and did not want

D.G. to return to Kazay.

¶5 At Detective Krause’s request, Grubb scheduled a forensic

interview for D.G. with the detective to investigate the child abuse

allegations. However, she failed to bring D.G. to the interview.

Detective Krause offered to reschedule, and Grubb agreed to

conduct an interview the following morning. But Grubb also failed

to show up for the second interview.

¶6 After the missed interviews, Detective Krause contacted D.G.’s

school and spoke with the principal, who informed him that D.G.

had not attended school since December 15 and that Grubb

“approached her staff a few weeks ago, made outrageous

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accusations towards Mr. Kazay and stated [D.G.] would not be at

school.” Grubb was then arrested and charged with violating a

custody order under section 18-3-304, C.R.S. 2024.

¶7 During the pretrial proceedings, the trial court held a hearing

on Grubb’s “choice of evils” affirmative defense under section

18-1-702(2), C.R.S. 2024. The trial court ruled that Grubb had not

met her burden to demonstrate “whether the claimed facts and

circumstances would, if established, constitute a justification [for

choice of evils].” § 18-1-702(2). After the hearing, Grubb expressed

her frustration with her counsel, including communication issues

and confusion regarding the choice of evils defense. Subsequently,

the court held a conflict hearing during which Grubb changed her

position and expressed satisfaction with her counsel.

¶8 Approximately a month later, Grubb’s pretrial defense counsel

filed a motion raising concerns about Grubb’s competency.

Counsel argued that “Grubb has what appears to be delusional

expectations and a delusional vision for her cases” and that

“Grubb’s memory of conversations and interactions with defense

counsel is inaccurate and also appears to be delusional.”

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¶9 The trial court advised Grubb and requested a competency

evaluation. Dr. Christina Gliser conducted an evaluation in

October 2019, and opined that

Grubb does not currently have a mental
disability or developmental disability that
prevents her from having sufficient present
ability to consult with her lawyer with a
reasonable degree of rational understanding in
order to assist in her defense, or prevents her
from having a rational and factual
understanding of the criminal proceedings.

Grubb did not challenge the results of this determination.

¶ 10 Not long after the evaluation, a new public defender took over

the case. Grubb then started to express challenges regarding

communication with her new counsel. She also continued to

express confusion about witnesses and evidence, along with her

prior counsel’s handling of the choice of evils defense. The week

before trial, the court held another conflict hearing where it

determined that there was no conflict but instead a lack of

communication between Grubb and her attorney. As a result, the

court ordered Grubb and her new counsel to meet with each other.

¶ 11 The matter proceeded to trial, and on the first day, Grubb’s

counsel raised Grubb’s concerns again. The trial court found that

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these continuing concerns were a misunderstanding regarding trial

strategy rather than competing interests between Grubb and her

counsel. The court determined that Grubb continued to have

concerns about communication and witnesses throughout the trial.

¶ 12 At the conclusion of trial, Grubb was convicted of violating the

custody order and sentenced to twenty-four months of supervised

probation.

II. Analysis

¶ 13 Grubb contends that the trial court (1) violated her right to

conflict-free counsel and (2) was required to sua sponte stop the

trial and order a new competency evaluation. We address each

contention in turn.

A. Conflict-Free Representation

¶ 14 Grubb contends that the trial court violated her Sixth

Amendment right to conflict-free counsel. We disagree.

1. Standard of Review and Applicable Law

¶ 15 We review de novo whether an actual conflict of interest

existed. People v. Deutsch, 2020 COA 114, ¶ 13; People v. Lopez,

2024 CO 50, ¶ 29.

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¶ 16 “The Sixth Amendment provides that ‘[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defense.’” Ronquillo v. People, 2017

CO 99, ¶ 15 (quoting U.S. Const. amend. VI); see also Colo. Const.

art. II, § 16. And “[t]he right of effective assistance of counsel

includes the right to conflict-free representation by counsel.” People

v. Martinez, 869 P.2d 519, 524 (Colo. 1994).

¶ 17 Generally, “a conflict of interest exists when: (1) an attorney’s

representation of one client is directly adverse to another client, [or]

(2) when the attorney’s ability to represent a client is materially

limited by the attorney’s responsibility to another client or to a third

person, or by the attorney’s own interests.” People v. Edebohls, 944

P.2d 552, 556 (Colo. App. 1996) (citing Rules of Professional

Conduct 1.7(a) and (b)), overruled on other grounds by Lopez, ¶ 3.

“Conflicts are categorized as either actual or potential. An actual

conflict of interest is one that is ‘real and substantial,’ whereas a

potential conflict is one that is ‘possible,’ is ‘nascent,’ or ‘in all

probability will arise.’” People v. Kelling, 151 P.3d 650, 657 (Colo.

App. 2006) (quoting People v. Harlan, 54 P.3d 871, 878 (Colo.

2002)).

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¶ 18 In reviewing a challenge based on a conflict of interest, we

“must first determine whether the case falls within one of the few

scenarios that the [United States] Supreme Court has said support

a presumption of prejudice.” Lopez, ¶ 45. A presumption of

prejudice exists when

(1) the trial court summarily rejected a pretrial
motion from defense counsel alleging a
conflict; (2) the defendant was completely
denied counsel at a critical stage of the
proceedings; (3) counsel completely failed to
subject the prosecutor’s case to meaningful
adversarial testing; or (4) the circumstances
were such that no counsel could render
effective assistance of counsel.

Id.

¶ 19 If none of these scenarios applies, “a defendant must show by

a preponderance of the evidence both a conflict of interest and an

adverse effect resulting from that conflict.” Id. at ¶ 42 (quoting

West v. People, 2015 CO 5, ¶ 65). A defendant who establishes a

conflict of interest and an adverse effect on the representation

resulting from that conflict does not need to show further prejudice

to obtain relief. See id. at ¶ 45.

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2. Grubb Has Not Demonstrated an
Actual Conflict or an Adverse Effect

¶ 20 Grubb argues that an actual conflict developed when trial

counsel contradicted Grubb on the record in open court and

disclosed privileged communications and trial strategy to defend

counsel’s representation of Grubb.

¶ 21 As an initial matter, we note that Grubb’s allegations do not

fall into any of the scenarios mandating automatic reversal. Thus,

we first turn to whether Grubb demonstrated a conflict of interest.

See id.

¶ 22 Grubb argues that on the first day of her trial, she raised the

issue of ineffective assistance of counsel with the court. She says

that in response, her trial counsel defended counsel’s own actions

at Grubb’s expense, breaching the attorney-client privilege and

leading to an actual conflict. Grubb compares her trial counsel’s

actions to those of the attorneys in People v. Ragusa, 220 P.3d

1002, 1006 (Colo. App. 2009), and People v. Delgadillo, 2012 COA

33, ¶ 11, and argues that these cases control the outcome here. We

review each of these cases before turning to the facts of the matter

before us.

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¶ 23 In Ragusa,

defendant’s attorneys shared privileged
information with the prosecution and the trial
court in the first in camera proceeding, when
they announced that they had advised
defendant “on more than one occasion” about
her potential sentence, that they “were very
adamant that [they] felt she should take [the
plea bargain],” and that, in their assessment,
her decision to proceed to trial was “folly.”
During the second in camera proceeding,
defendant’s attorneys repeated statements
defendant made to them about the “patsy
defense” they were presenting, which they
characterized as a “vicious attack.” They also
expressed their concern that they were “being
set up” and made a “target” by defendant.

220 P.3d at 1007.

¶ 24 The Ragusa court found that the defendant’s attorneys relied

on People v. Schultheis, 638 P.2d 8 (Colo. 1981), “as a pretext to

obtain an in camera hearing and, for some reason not discernable

from the record, proceeded to relay to the trial court and the

prosecution their belief that defendant should have accepted the

prosecution’s plea bargain and their frustration with her for not

having done so.” Ragusa, 220 P.3d at 1007. Based on those

events, the division concluded that “[t]his conduct by defendant’s

attorneys shows that they and defendant were in conflict in ways

9
that go beyond differences of opinion as to matters of trial strategy

or the strength of defendant’s case, or animosity between them.” Id.

(citations omitted). The Ragusa division ultimately concluded that

the cumulative effect of several factors, including counsel trying to

prevent the defendant from firing them, created an actual conflict of

interest that adversely affected the attorneys’ performance. See id.

at 1008.

¶ 25 Delgadillo’s facts are even more dramatic. There, the court

conducted an in camera proceeding during the trial and before the

defense rested its case. Delgadillo, ¶ 11. At the in camera

proceeding, the court swore defense counsel in as a witness, and

the prosecutor examined defense counsel about how he had advised

the defendant, including whether defense counsel had rendered

ineffective assistance. Id. at ¶¶ 13, 20.

¶ 26 However, during this proceeding “[n]o one asked defendant

whether he would waive the attorney-client privilege to allow his

counsel to testify, or explained what the consequences might be if

defense counsel testified inconsistently with defendant’s trial

testimony.” Id. at ¶ 12. The division observed that “[t]his inquiry

placed counsel in a position such that, regardless of whether he

10
rendered ineffective assistance, he apparently felt compelled to

divulge attorney-client privileged information and defense strategy

in order to justify the advice he gave to defendant.” Id. at ¶ 21. The

division then concluded that these actions created an actual conflict

of interest. Id. at ¶ 25.

¶ 27 Grubb’s situation is not factually analogous to Ragusa or

Delgadillo. It is true that Grubb raised the specter of ineffective

assistance of counsel, but the record before us indicates that her

concerns about ineffective assistance spawned from the actions of

her former attorney, who represented Grubb at the choice of evils

hearing.

¶ 28 And while Grubb’s counsel noted that “Grubb is still having

the same concerns regarding counsel that she addressed with the

Court last Thursday,” we do not have a transcript containing those

concerns. The information within the record regarding Grubb’s

Thursday concerns consists of a minute order stating that “[Grubb]

raises issue of conflict with counsel; court hears testimony and

finds no conflict” and a certification of the record recapping the trial

court’s determination. Neither of these portions of the record

11
details what Grubb actually raised at the conflict hearing, and there

is no transcript that includes the contents of that hearing.

¶ 29 As the appellant, Grubb is responsible for providing an

adequate record to demonstrate her claims of error. See Egelhoff v.

Taylor, 2013 COA 137, ¶ 13. If she “fails to provide us with such a

complete record, we must presume the correctness of the trial

court’s proceedings.” People v. Ullery, 984 P.2d 586, 591 (Colo.

1999).

¶ 30 Grubb did not provide a transcript of the Thursday conflict

hearing, and thus we must presume that — four days before trial —

the trial court correctly determined there was no conflict of interest.

¶ 31 Additionally, the record before us does not demonstrate that

Grubb’s current attorney was placed in a position of defending her

own actions during trial. Instead, trial counsel’s comments to the

court explained Grubb’s struggles to understand why she could not

use a specific defense at trial.

¶ 32 To the extent Grubb’s counsel disclosed privileged or

confidential information to the trial court and prosecutor, our

review of the record demonstrates that these instances were

primarily explaining Grubb’s frustrations with prior counsel and

12
her inability to use the choice of evils defense, informing the court

of advisements that she had given Grubb, giving the court context

for Grubb’s questions, and articulating Grubb’s general

frustrations. These explanations did expose some communications

between Grubb and her counsel. But they were made in the

context of explaining Grubb’s statements and concerns to the trial

court as she raised them. In other words, Grubb’s counsel wasn’t

revealing her communications with Grubb for counsel’s benefit.

Instead, she was primarily using the communications to further

explain her client’s concerns to the court. Even if counsel did

inappropriately disclose these communications without her client’s

consent, we don’t see such disclosures as demonstrating a conflict

of interest between counsel and her client.

¶ 33 Ultimately, the trial court determined that Grubb objected to

her counsel’s trial strategy. “Disagreements pertaining to matters

of trial preparation, strategy, and tactics do not establish good

cause for substitution of counsel.” Kelling, 151 P.3d at 653; see

also People v. Garcia, 64 P.3d 857, 864 (Colo. App. 2002)

(determining that conflict between defendant and counsel was a

disagreement over strategy, and thus did not require appointment

13
of new counsel). The record demonstrates that, unlike the facts in

Ragusa and Delgadillo, Grubb’s counsel was not primarily

defending her earlier acts or omissions. See Kelling, 151 P.3d at

657. Instead, four days after the court determined there was no

conflict, trial counsel explained the underpinnings of Grubb’s

continued concerns. Based on the record before us, we agree with

the trial court’s determination that this was primarily a

disagreement over trial strategy.

¶ 34 Thus, Grubb hasn’t shown that her counsel labored under an

actual conflict of interest. Accordingly, her contention fails at the

first stage of the Lopez and West tests. We thus discern no error in

the trial court’s ruling.

B. Competency

¶ 35 Grubb also contends that the trial court erred by failing to sua

sponte halt the proceedings and inquire into her competency to

proceed at trial. We disagree.

1. Preservation

¶ 36 The People argue that Grubb failed to preserve this issue for

review. “To preserve a claim, a party must make an objection

‘specific enough to draw the trial court’s attention to the asserted

14
error.’” People v. Tallent, 2021 CO 68, ¶ 12 (quoting Martinez v.

People, 2015 CO 16, ¶ 14). However, “[w]hen a party presents a

new argument or alters the grounds for an objection on appeal, the

issue is forfeited and reviewable only for plain error.” Id.

¶ 37 Grubb states that she preserved this issue when her counsel

“informed the court on the first day of trial that [Grubb] had not

understood [counsel’s] advisements on various issues and did not

know what the most recent plea offer was or understand the

defense they were raising.” But the entire thrust of Grubb’s

argument on appeal is that the trial court should have — on its own

— raised the issue of competency. Her argument is based on the

premise that she did not ask the trial court to evaluate her

competency again. Thus, this issue was not preserved for appeal.

Id. However, Grubb’s “failure to raise this issue in the trial court

does not preclude us from considering it as plain error on appeal.”

People v. Kilgore, 992 P.2d 661, 663 (Colo. App. 1999).

2. Applicable Law and Standard of Review

¶ 38 “Subjecting a defendant to trial when [she] is incompetent

violates the defendant’s right to due process.” People v. Mondragon,

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217 P.3d 936, 939 (Colo. App. 2009). A defendant is “incompetent

to proceed” when,

as a result of a mental disability or
developmental disability, the defendant does
not have sufficient present ability to consult
with the defendant’s lawyer with a reasonable
degree of rational understanding in order to
assist in the defense, or that, as a result of a
mental disability or developmental disability,
the defendant does not have a rational and
factual understanding of the criminal
proceedings.

§ 16-8.5-101(12), C.R.S. 2024; see also Mondragon, 217 P.3d at 939

(quoting People v. Morino, 743 P.2d 49, 51 (Colo. App. 1987)); Dusky

v. United States, 362 U.S. 402, 402 (1960).

¶ 39 “We review a trial court’s competency determination for an

abuse of discretion.” Mondragon, 217 P.3d at 939. “A trial court

abuses its discretion where its decision is manifestly arbitrary,

unreasonable, or unfair, or where it applies an incorrect legal

standard.” Id. (citation omitted). By asserting her own

incompetency, Grubb bears “the burden of submitting evidence and

the burden of proof by a preponderance of the evidence.”

§ 16-8.5-103(7), C.R.S. 2024.

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¶ 40 We review Grubb’s unpreserved claim for plain error. See

People v. Miller, 113 P.3d 743, 748-50 (Colo. 2005). “Plain error is

obvious and substantial.” Hagos v. People, 2012 CO 63, ¶ 14. “We

reverse under plain error review only if the error ‘so undermined the

fundamental fairness of the trial itself so as to cast serious doubt

on the reliability of the judgment of conviction.’” Id. (quoting Miller,

113 P.3d at 750).

3. The Trial Court Did Not Abuse Its Discretion
in Failing to Sua Sponte Raise Competency

¶ 41 Grubb argues that the trial court had a duty to inquire

whether she was competent to proceed after her trial counsel

indicated that Grubb did not understand her advisements and the

evidentiary presentation.

¶ 42 Approximately ten months before trial Grubb’s former defense

attorney raised the issue of competency due to her concerns about

repeated difficulties communicating with Grubb. And before the

trial began, Grubb’s trial attorney also expressed concern regarding

communication difficulties. Part of this concern was that Grubb

appeared resistant to attorney feedback, and, at times, this rigidity

appeared delusional.

17
¶ 43 Dr. Gliser evaluated Grubb and the trial court found her

competent approximately three months before trial. Dr. Gliser’s

report addressed the communication difficulties and acknowledged

that they were present. However, her expert evaluation did not find

that these underlying concerns demonstrated incompetency.

Instead, she opined that

[i]t should be noted that during the current
evaluation, Ms. Grubb evidenced the tendency
to focus on relatively small details of her case
(e.g., what time officers arrived on scene), to
the exclusion of details that seemed much
more salient to her defense. She also
described a legal strategy that appeared not
delusional, but perhaps unwise. It is possible
that in future discussions with her attorney,
she may benefit from more time to explain her
point of view, then a detailed explanation of
why such strategies may not prove helpful to
her in the end. Although she is not delusional
and does not present with classic symptoms of
mental illness, it is probable that she will prove
to be a challenging client due to underlying
maladaptive personality traits.

(Emphasis added.)

¶ 44 Grubb’s argument — that the trial court should have, on its

own, re-raised the issue of competency at trial — relies on the same

underlying issues that were already addressed in Dr. Gliser’s

evaluation. Her argument focuses on her difficulties

18
communicating with her attorney, confusion about the timing of her

case, questioning the presentation of evidence, and feeling like she

was in the dark about her case. None of these concerns

demonstrated that Grubb lacked “a sufficient present ability to

consult with [her] counsel with a reasonable degree of rational

understanding, and a present rational and factual understanding of

the proceedings against [her].” Mondragon, 217 P.3d at 940

(quoting Morino, 743 P.2d at 51).

¶ 45 In fact, many of Grubb’s concerns about the presentation of

evidence and the timing of her case are good indicators of

competency. Her questions regarding the presentation of evidence,

interviewing witnesses, her rights, witness interviews, and the

sentencing timeline show that, while perhaps confused on some

points, Grubb demonstrated a rational and factual understanding

of the proceedings against her. See id.

¶ 46 Grubb also argues that the concerns that gave rise to her first

evaluation should have put the issue on the trial court’s “radar.”

It’s true that a trial court must be aware of potential issues with a

defendant’s competency to stand trial. See Drope v. Missouri, 420

U.S. 162, 180 (1975) (“[E]vidence of a defendant’s irrational

19
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.”). However, the record before us does

not demonstrate a change in circumstances or behavior from

Grubb’s evaluation and first competency determination that would

have raised further concerns about her competency. If anything,

Dr. Gliser’s report cuts in the opposite direction, concluding that

Grubb was competent to stand trial while flagging that she had

difficult behaviors.

¶ 47 The trial court relied on Dr. Gliser’s evaluation in ruling that

Grubb was competent to proceed. At the time of trial, there were no

significant changes in the underlying concerns that led to that

evaluation. And there was no indication that Grubb’s concerns at

trial were the “result of a mental disability or developmental

disability.”

¶ 48 Thus, we see no grounds in the record that would have

required the trial court to, on its own, re-raise the issue of Grubb’s

competency. Accordingly, we determine that the trial court did not

abuse its discretion.

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III. Disposition

¶ 49 The judgment is affirmed.

JUDGE YUN and JUDGE BERGER concur.

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