State v. Champagne

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          Appeal from the Superior Court in Maricopa County, The Honorable Pamela S. Gates, Judge, No. CR2013-000177-002.

         Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General, Lacey Stover Gard, Chief Counsel, Capital Litigation Section, Julie A. Done (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona

         Garrett W. Simpson (argued), Garrett Simpson PLLC, Glendale, Attorney for Alan Matthew Champagne

          JUSTICE BOLICK authored the opinion of the Court, in which CHIEF JUSTICE BALES (Retired), VICE CHIEF JUSTICE BRUTINEL, and JUSTICES TIMMER, GOULD, LOPEZ, and PELANDER (Retired) joined.

         OPINION

          BOLICK, JUSTICE

         [¶1] Alan Matthew Champagne was convicted of the first-degree murder of Brandi Hoffner, the second-degree murder of Philmon Tapaha, kidnapping Hoffner, and two counts of abandonment or concealment of a dead body. He was sentenced to death for the first-degree murder. We have jurisdiction over this direct appeal under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 13-4031. For the following reasons, we affirm Champagne’s convictions and sentences.

          BACKGROUND

         [¶2] On June 23, 2011, Champagne and three friends drank alcohol and used methamphetamine at his apartment.^[1] One friend, Elise Garcia, spent the night. Early the next morning, she was in the bathroom when two people entered the apartment with Champagne. As she walked into the living room, Garcia heard a gunshot and then saw Tapaha on the couch with a bullet wound to his head, blood on the walls and the couch, and Champagne standing next to him holding a gun. Tapaha’s girlfriend, Hoffner, cried at the sight of her dead boyfriend, saying, "I loved him."

         [¶3] Champagne attempted to calm Hoffner and asked if she wanted to get high. Hoffner nodded affirmatively, and he led her into the bedroom and gave her a bong and methamphetamine for her to smoke. Garcia followed them into the bedroom and sat in the doorway.

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Champagne left the room briefly, placing a gun in Garcia’s lap before he exited the room. Garcia testified that when she locked eyes with Hoffner, Hoffner understood she would not be allowed to leave. When Champagne returned, he came behind Hoffner as she was smoking and slipped an electrical cord fashioned into a noose around her neck. Hoffner struggled, clawing with both hands at the cord trying to breathe as Champagne used a wrench to tighten the cord with each turn. Garcia recalled Hoffner’s face turning purple as Champagne strangled her to death.

         [¶4] After Champagne killed Hoffner, he kept the bodies in his apartment for approximately one week. Eventually, Champagne placed the decomposing bodies into a large wooden box, which he buried in his mother’s backyard. About twenty months later, a landscaper discovered the box containing the bodies.

         [¶5] The State charged Champagne with two counts of first-degree murder for the killings of Tapaha and Hoffner, one count of kidnapping Hoffner, and two counts of abandonment or concealment of the bodies. The jury found Champagne guilty on all charges, except that it found him guilty of second-degree murder for the killing of Tapaha. The jury found three aggravating circumstances: (1) Champagne had been previously convicted of a serious offense, A.R.S. § 13-751(F)(2); (2) he murdered Hoffner in an especially cruel manner, § 13-751(F)(6); and (3) he was convicted of multiple homicides during the commission of the offense, § 13-751(F)(8). The jury found that the proffered mitigation was not sufficiently substantial to call for leniency and Champagne was sentenced to death for Hoffner’s murder. This automatic appeal followed.

          DISCUSSION

          A. Request for Change of Counsel

         [¶6] Champagne contends that the trial court erred in summarily dismissing his request to change counsel and failing to adequately inquire into whether a true conflict existed, thus violating his constitutional right to conflict-free counsel. We review a trial court’s decision to deny a request for new counsel for abuse of discretion. State v. Cromwell, 211 Ariz. 181, 186 ¶ 27, 119 P.3d 448, 453 (2005).

         [¶7] Before trial, Champagne filed a pro per motion to change counsel, which the trial court described as a "[bare] bones hand-written motion" that cited "no particular reason" why counsel should have been changed. Defense counsel maintained that Champagne had a "good faith basis to ask for new counsel" and informed the court that there was a bona fide conflict of interest because Champagne said he was filing a complaint against her with the State Bar of Arizona. Because of that conflict, counsel asserted that she and her co-counsel needed to be "removed from representing Mr. Champagne any further." The trial court denied counsel’s oral motion to remove capital counsel, who had been working on the case for eighteen months, and instructed counsel to file a motion if she believed it was appropriate for Champagne to obtain new counsel. She did not do so.

         [¶8] Three-and-one-half months later, Champagne wrote a letter to the court, repeating his request for new counsel and alleging his current counsel had fallen asleep during his recent, unrelated trial, which resulted in over a 700-year sentence. But after the court reviewed his letter, Champagne informed the court that he wanted his attorney to visit him in jail to explore whether they could "reach some type of an understanding or working relationship." Despite a productive jail visit, Champagne indicated to the court that he still wanted to change his counsel.

         [¶9] The court treated Champagne’s letter as a motion to change counsel and addressed it at a hearing. The prosecutor noted that a delay in trial due to change in counsel would impact witness availability and the victims’ rights to a speedy trial. The court then conducted an ex parte hearing in the presence of only Champagne and his attorney on the purported conflict. Champagne told the court he wanted to change counsel because his lawyer fell asleep during his previous trial— which, according to Champagne, alone constituted adequate grounds to change counsel— and that she was not visiting him or discussing the current case with him.

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         [¶10] In response, Champagne’s counsel explained that Champagne was extremely unhappy about the outcome of his prior trial, that he became hostile and uncooperative, and that he refused visits from counsel’s mitigation specialist. She detailed the extensive amount of time and work that she spent preparing for this case. Moreover, she told the court she was willing to assist Champagne in accurately and adequately preserving a record of the allegations surrounding her perceived behavior during his prior trial. Ultimately, Champagne’s counsel asserted that a change of counsel was not in Champagne’s best interests and that she did not believe the relationship was irretrievably broken but that they could work together and proceed to trial. The trial court denied Champagne’s request for new counsel.

         [¶11] The trial court did not abuse its discretion. Champagne argues that the Court should "presume the prejudice because there was a showing of actual conflict of interest." He relies considerably on counsel’s initial statement that he had a good-faith basis for requesting a change of counsel, maintaining that the court’s denial of his request resulted in structural error tainting his entire trial. But that statement came shortly after Champagne informed his attorney that he intended to pursue a bar complaint against her. And Champagne ignores counsel’s subsequent statements that the relationship was not irretrievably broken, that a change of counsel was not in his best interests, that she was dedicated to his current case, and that she was willing to help him establish a record of his allegations relating to her perceived behavior in his prior trial.

         [¶12] Although the Sixth Amendment guarantees an accused the right to counsel, a "defendant is not, however, entitled to counsel of choice or to a meaningful relationship with his or her attorney." Cromwell, 211 Ariz. at 186 ¶ 28, 119 P.3d at 453. A defendant is deprived of his constitutional right to counsel "if either an irreconcilable conflict or a completely fractured relationship between counsel and the accused exists." State v. Hernandez, 232 Ariz. 313, 318 ¶ 12, 305 P.3d 378, 383 (2013) (internal quotation marks omitted). Such a "deprivation of a defendant’s Sixth Amendment right to counsel infect[s] the entire trial process," requiring automatic reversal. State v. Moody (Moody I), 192 Ariz. 505, 509 ¶ 23, 968 P.2d 578, 582 (1998) (alteration in original) (internal quotation marks omitted). A "[c]onflict that is less than irreconcilable, however, is only one factor for a court to consider in deciding whether to appoint substitute counsel." Cromwell, 211 Ariz. at 186 ¶ 29, 119 P.3d at 453.

         [¶13] Trial courts have a duty to inquire into the basis of a defendant’s request for change of counsel. State v. Torres, 208 Ariz. 340, 343 ¶ 7, 93 P.3d 1056, 1059 (2004). But the nature of that inquiry depends on the nature of the defendant’s request. Id. ¶ 8. On the one hand, if the defendant sets forth "sufficiently specific, factually based allegations in support of his request for new counsel, the ... court must conduct a hearing into his complaint." Id. (alteration in original) (internal quotation marks omitted). On the other hand, "generalized complaints about differences in strategy may not require a formal hearing or an evidentiary proceeding." Id. A trial court’s failure to conduct an inquiry into a purported conflict can, under certain circumstances, serve as a basis for reversing a defendant’s conviction. See Holloway v. Arkansas, 435 U.S. 475, 487-91, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).

         [¶14] Trial courts should examine requests for new counsel "with the rights and interest of the defendant in mind tempered by exigencies of judicial economy." State v. LaGrand, 152 Ariz. 483, 486, 733 P.2d 1066, 1069 (1987). This Court has identified several factors— known as the LaGrand factors— for trial courts to consider when ruling on motions for change of counsel:

whether an irreconcilable conflict exists between counsel and the accused, and whether new counsel would be confronted with the same conflict; the timing of the motion; inconvenience to witnesses; the time period already elapsed between the alleged offense and trial; the proclivity of the defendant to change counsel; and quality of counsel.

Id. at 486-87, 733 P.2d at 1069-70. Here, "[a]lthough the trial court could have engaged

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in a more searching exploration" of the responses from Champagne’s attorney as to the truthfulness behind his claim that she fell asleep during his prior trial and the repercussions of that alleged behavior on their attorney-client relationship, see Hernandez, 232 Ariz. at 318-19 ¶ 16, 305 P.3d 378, 383-84, the court did not abuse its discretion because it sufficiently inquired into the purported conflict and considered the LaGrand factors.

         [¶15] First, the court determined that there was no irreconcilable breakdown in communication between Champagne and his counsel. Champagne had the burden of proving "either a complete breakdown in communication or an irreconcilable conflict," and, to satisfy that burden, he needed to "present evidence of a severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible." Hernandez, 232 Ariz. at 318 ¶ 15, 305 P.3d at 383 (internal quotation marks omitted). The court concluded that the circumstances did not amount to an irreconcilable breakdown in communication, that Champagne was able to communicate with his lawyer, and that he was receiving effective representation. And while the court noted that Champagne may understandably be upset and have "some trust issues" if counsel truly fell asleep during a brief period of his prior trial, "[a] mere allegation of lost confidence in counsel does not require appointing substitute counsel." State v. Bible, 175 Ariz. 549, 591, 858 P.2d 1152, 1194 (1993).

         [¶16] Second, the court noted that new counsel would likely be confronted with the same conflict. Other than the allegation that counsel slept during part of his previous trial, Champagne’s main concern was that his attorney was not adequately communicating with him. However, counsel told the court that she had visited Champagne multiple times in jail, as had her mitigation specialist, but that he sometimes refused visits. Additionally, counsel said that her challenging trial schedule had made it difficult to see Champagne for a few months, but that she was nonetheless preparing for his trial and ready to move forward. Based on that information, the court found that a change in counsel would likely result in the same purported conflict because new counsel might also be unable to visit and confer with Champagne as often as he would like, making it conceivable that the court could find itself in the same circumstance with a change of counsel.

         [¶17] Third, the court found that granting Champagne’s request would delay trial, which could ultimately inconvenience witnesses. The prosecutor explained how a change of counsel would delay trial and make it difficult for the State to get certain witnesses to court. See Cromwell, 211 Ariz. at 187 ¶¶ 34-35, 119 P.3d at 454 (noting that the fact that appointing new counsel would cause delay and inconvenience to witnesses was part of a "proper balancing of relevant interests" under LaGrand ). Here, not only would a delay stemming from change in counsel have resulted in inconvenience to witnesses, but it may have prejudiced the State’s case.

         [¶18] Fourth, the court explicitly noted the quality of counsel. The court observed that Champagne’s counsel was "one of the best capital defense attorneys in the State of Arizona" and that she was "aggressively" working on his case.

         [¶19] Finally, the court considered the timing of Champagne’s motion and the time that had already elapsed since the alleged offense. Champagne’s request for new counsel came after counsel had invested substantial time and effort into the case, nearly two years after Champagne committed the murders, over a year after he was indicted, less than a year before trial was scheduled to begin, and only after Champagne lost his previous trial and was sentenced to more than 700 years. The court considered the "substantial" delay that would be caused by a change in counsel, concluding that "[i]t would absolutely prejudice the victim[s’] interest[s] and the community interest in a speedy resolution of this matter." See Ariz. Const. art. 2, § 2.1(A)(10); Phx. Newspapers, Inc. v. Otis, 243 Ariz. 491, 496 ¶ 16, 413 P.3d 692, 697 (App. 2018).

         [¶20] In fact, only one LaGrand factor weighed in Champagne’s favor— the proclivity of the defendant to change counsel— as he had not previously requested a change of

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counsel. But one factor weighing in Champagne’s favor does not necessitate a finding that he was entitled to change counsel when the other factors weighed in support of denying his request. See LaGrand, 152 Ariz. at 486-87, 733 P.2d at 1069-70. Thus, the court did not abuse its discretion in denying Champagne’s request for change of counsel.

         [¶21] The trial court did not explicitly refer to the LaGrand factors, but the record indicates that the court considered these factors in assessing and denying Champagne’s request for change of counsel. See Hernandez, 232 Ariz. at 321 ¶¶ 34-36, 305 P.3d at 386 (finding trial court did not abuse its discretion when it considered the LaGrand factors but "did not explicitly refer to the aforementioned factors"). Although we encourage trial courts to make explicit LaGrand findings, the record here nevertheless reflects the court’s adequate consideration of the factors.

          B. Question 78 of the Jury Questionnaire

         [¶22] Champagne argues that the trial court erred by telling the jury during voir dire and in the jury questionnaire that a life sentence could result in the possibility of Champagne’s release after twenty-five years. Because Champagne did not object at trial, he has forfeited any right to appellate relief unless the purported error rises to the level of fundamental error. See State v. Henderson, 210 Ariz. 561, 567 ¶ 19, 115 P.3d 601, 602 (2005); see also State v. Bush, 244 Ariz. 575, 591 ¶¶ 66-68, 423 P.3d 370, 386 (2018). We review whether the trial court properly instructed the jury de novo. State v. Rushing, 243 Ariz. 212, 221 ¶ 36, 404 P.3d 240, 249 (2017).

         [¶23] Champagne is ineligible for parole under Arizona law. See A.R.S. § 41-1604.09(I). In Simmons v. South Carolina, a plurality of the United States Supreme Court held that "where the defendant’s future dangerousness is at issue, and state law prohibits the defendant’s release on parole, due process requires that the sentencing jury be informed that the defendant is parole ineligible." 512 U.S. 154, 156, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality opinion). The Court emphasized that "it is entirely reasonable for a sentencing jury to view a defendant who is eligible for parole as a greater threat to society than a defendant who is not," and "there may be no greater assurance of a defendant’s future nondangerousness to the public than the fact that he never will be released on parole." Id. at 163-64, 114 S.Ct. 2187.

         [¶24] Before trial, Champagne requested a Simmons instruction. The State did not object and the final jury instructions during the penalty phase properly included the following Simmons instruction: "If a life sentence is imposed, parole is unavailable to Mr. Champagne under state law." The record does not indicate and Champagne does not argue that the court or the parties suggested during trial that, if sentenced to life, Champagne had the possibility of release on parole.

         [¶25] Here, the thrust of Champagne’s argument is that the trial court contradicted Simmons "by telling the jury repeatedly that despite the lack of parole Mr. Champagne could be released after 25 years for any reason sufficient to the court." The jury questionnaire used during voir dire ...