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De utY istrict
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By
1 IN THE JUSTICE COURT OF RENO TOWNSHIP
2 IN AD FOR THE COUNTY OF WASHOE, STATE OF NEVADA
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4 THE STATE OF NEVADA,
Plaintiff,
RCR2011-063341
6 v.
DEPT: 2
7 ZACHARY BARKER COUGHLIN,
8 Defendant.
9 /
MOTION TO STRIKE FUGITIVE DOCUMENT
11 COMES NOW, the State of Nevada, by and through RICHARD A.
12 GAICK, District Attorney of Washoe County, and ZACH YOUNG, Deputy
13 District Attorney, and hereby moves this Honorable Court for an Order
granting the State's Motion to Strike Fugitive Document. This Motion
is based upon the attached Points and Authorities and any oral and/or
16 documentary evidence that may be presented at a hearing on this
17 matter.
18 AFFIRMATION PURSUANT TO NRS 239B.030
19 The undersigned does hereby affirm that the preceding
document does not contain the social security number of any person.
21 DATED this day of 2012.
22 RICHARD A. GAMMICK
District Attorney
23 Washoe County, Nevada
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ZAC;
Attorney
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I.
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POINTS A AUTHORITIES
Statement of the Case
3 On August 20, 2011, Zachary Barker Coughlin (hereinafter
4 "the Defendant") was arrested by the Reno Police Department. He was
5 charged, by way of a Criminal Complaint, with a misdemeanor count of
6 Petit Larceny. Subsequently, an Amended Criminal Complaint was filed
7 alleging a second misdemeanor count of Possession of Stolen Property.
8 From the inception of this case, the Washoe County Public Defender's
9 Office was appointed to represent the Defendant, and Deputy Public
10 Defender Joe Goodnight (hereinafter "Mr. Goodnight") was assigned to
11 the Defendant's case. Among other things that Mr. Goodnight has done
12 in the course of his representation, he filed a Motion to Suppress on
13 February 13, 2012.
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14 Throughout the course of the instant case, the Defendant
has personally sent several emails and faxes to the undersignedl Mr.
16 Goodnight I and this Court. On February 15 1 20121 the undersigned
17 received, by way of fax, a "Motion to Dismissl Motion to Suppress,
18 Motion in Liminel Motion to Examine Police Personnel Filesl Motion
19 for Sanctionsl Motion for Continuance or Extension of Timel Notice of
20 Appearance of Co-Counsell Notice of Ineffective Assistan [sic] of
21 WCPD Defense Counsel; Request for New Counsel. " This purported motion
22 was not file stamped when received by the undersigned. Later on
23 February 15 I 2012 I Steve Tuttle (hereinafter "Mr. Tuttle'/) I who is
24 the Court Administrator for the Reno Justice Court, emailed the
25 Defendant I Mr. Goodnight I and the undersigned stating that certain
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1 The State is currently drafting an Opposition to said Motion to Suppress, which will be timely filed.
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documents - purportedly the aforementioned "motion" - will be file
stamped February 15, 2012.
While the State has not yet received a file-stamped copy of
the purported motion, the State files the instant Motion to Strike
Fugitive Document in an abundance of caution due to Mr. Tuttle's
email stating that such document would be filed and given to this
Court for review. 2
II. ARGUENT
"If the defendant elects to have counsel, he has no right
to represent himself." v. State, 91 Nev. 363, 366 (1975)
While a criminal defendant has a constitutional right of self-
representation, he does not have a right of "hybrid representation",
where a defendant has an attorney representing him and represents
himself at the same time. v. Warden, 95 Nev. 567, 568-569
(1979) (overruled, on other grounds, by v. State, 104 Nev. 736
(1988) ) ; also see v. State, 118 Nev. 1, 8-9 (2002) (citing a
California's court denial of a defendant's request, opposed by
counsel, to act as co-counsel) . The Nevada Supreme Court has
"previously determined that although a criminal defendant may have
both a right of self-representation and a right to assistance of
counsel, this does not mean that a defendant is 'entitled to have his
case presented in court both by himself and by counsel acting at the
same time or alternatively at the defendant's pleasure. '" 95
Nev. at 568-569.
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The undersigned has received several other purported motions, signed by the Defendan t, throughout the
course of this case. Until now, the State was not made aware that any of the prior "pleadings" had been
filed. This Motion , while spe cifically addressing the aforemen tioned purported motion filed by the
De fendan t, equally applies to any other fugitive documents personally sent or filed by the Defendant.
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In the instant case, the defendant is represented by Mr.
Goodnight, a deputy with the Washoe County Public Defender's Office.
As such, the Defendant is not - at the instant time - in a position
to be representing himself, and any documents filed or otherwise
submitted by him, rather than Mr. Goodnight, are fugitive documents.
Such documents should not be considered by this Court, and the State
should not be required to respond to such purported filings.
Allowing a hybrid representation poses several practical
problems. " [W] hile the client may make decisions regarding the
ultimate objectives of representation, the trial lawyer alone is
entrusted with decisions regarding legal tactics. " 118 Nev. at
8. A defendant and his attorney, if acting as co-counsel, may reach
an impasse as to certain legal tactics, such as what questions to ask
and what evidence to offer (if any) , thereby negatively impacting the
representation of the Defendant. Should the litigation go off in
different, possibly opposite, directions, the question arises as to
who will make the ultimate decision: criminal defendant or his
attorney. If there is a disagreement between "co-counselH that cannot
be resolved, should the presiding judge become involved in conflict-
resolution? See 118 Nev. at 9 (finding that the district court
should not have attempted to resolve a dispute between a defendant
and his counsel) .
Further, what happens if either the Defendant or Mr.
Goodnight believes that his "co-counsel" is acting unethically or
against the best interest of the Defendant's case? Who gets the final
say and should one report the other for any unethical or otherwise
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improper behavior? And if one person acts unethically, is the " co-
counsel" responsible for any such misconduct? Moreover, where a
defendant truly representing himself in proper person is barred from
subsequently claiming he was denied the effective assistance of
counsel, does the same hold true for a defendant acting as co-counsel
with an attorney? Also, what sort of canvasses should be conducted by
the presiding court regarding all of the above concerns? Finally, as
is true in the instant case, "co-counsel" may be filing duplicative
and redundant pleadings, which begs the question which pleading
controls so as not to unduly burden the court and the State. 3
In sum, the Defendant should not be allowed to act as co-
counsel with Mr. Goodnight in the instant case, and consequently, any
pleadings filed by him should be stricken as fugitive documents. Of
course, should the Defendant wish to represent himself, such a
request should be raised before this Court, at which time a proper
canvass can be administered, pursuant to Faretta v. California, 422
U. S. 806 (197 5), and Nevada Supreme Court Rule 253.
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request is made, and potentially authorized by this Court, the
Defendant should be prohibited from filing his own pleadings. As
previously stated, the Defendant can represent himself or be
represented by an attorney, but he is not entitled to a hybrid of
both.
Additionally, the purported motion filed by the Defendant
includes one exhibit, which the Defendant titles, "Collection of
} Mr, Goodnight, as previously stated, file d a Motion to Suppress on February 13, 2012, while the
aforementioned fugitive pleading filed by the Defendant includes reference to a "Motion to Suppress,
4 To the best of the undersigned's knowledge , the Defe ndant has not yet asked to represent himself,
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1 Correspondence Between WCPD Joe Goodnight, Esq and Zach Coughlin,
2 Esq. ; Two Hundred and Twenty six (226) Pages. " By the very title of
3 the exhibit, it appears that the Defendant is waiving his attorney-
4 client privilege, as he has taken it upon himself to provide to the
5 undersigned and this Court correspondence he has had with his
6 attorney. If this is the Defendant's intent, such may turn out to be
7 an ill-advised decision; if this is not the Defendant's intent, then
8 the State should not have to respond to the aforementioned motion as
9 it incorporates, by way of attachment, a document which arguably
10 should not be reviewed by the undersigned.
11 III. CONCLUSION
12 The State respectfully submits that any motions or other
13 documents executed and signed by the Defendant himself that are filed
with this Court, including but not limited to the Defendant's "Motion
15 to Dismiss, Motion to Suppress, Motion in Limine, Motion to Examine
16 Police Personnel Files, Motion for Sanctions, Motion for Continuance
or Extension of Time, Notice of Appearance of Co-Counsel, Notice of
18 Ineffective Assistan [sic] of WCPD Defense Counsel; Request for New
19 Counsel" should be stricken as a fugitive document. Accordingly, the
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State hereby respectfully requests that this Court grant the instant
Motion to Strike Fugitive Document.
AFFIRMATION PURSUANT TO NRS 239B. 030
The undersigned does hereby affirm that the preceding
document does not contain the social security number of any person.
DATED this day

2012.
RICHARD A. GAMMICK
District Attorney
Washoe County, Nevada
Attorney
0217RCR2011063 3414
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