State v. Cowles

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NOT DESIGNATED FOR PUBLICATION

No. 114,612

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DEAN ALAN COWLES,
Appellant.


MEMORANDUM OPINION

Appeal from Kingman District Court; LARRY T. SOLOMON, judge. Opinion filed March 31, 2017.
Affirmed.

Meryl Carver-Allmond, of Capital Appellate Defender Office, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before ATCHESON, P.J., STANDRIDGE and SCHROEDER, JJ.

Per Curiam: Dean Alan Cowles appeals his conviction for second-degree murder.
Cowles raises two issues on appeal. First, he alleges the district court erred in permitting
the State to introduce evidence that he attempted to cover up the murder by framing
someone else. Second, he alleges the court erred in denying him new counsel. As to his
first issue, we find the cover-up evidence was relevant to establish Cowles' intent because
it demonstrated a consciousness of guilt, and reasonable people could agree with the
district court that the probative value of the evidence outweighed any prejudicial impact.
Regarding the second issue, the record reflects Cowles failed to raise an issue that
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amounted to a conflict of interest or breakdown in communication with his attorneys that
would necessitate withdrawal of his current counsel. Finding no error, we affirm.

FACTS

On the evening of February 19, 2014, Cowles and J.C. Hartpence were drinking
alcohol in Cowles' trailer, which belonged to the oil drilling company for which they both
worked in Kingman, Kansas. At some point in the evening, Cowles called Curtis Shelton,
another employee who worked for the oil drilling company. Cowles was angry because it
was after work hours but Curtis' son, Nicholas, had not returned to the trailer with a truck
belonging to the company. Both Cowles and Hartpence exchanged angry words with
Curtis.

Cowles and Hartpence left Cowles' trailer intending to get the truck back. On their
way out, they borrowed a pistol from another company employee. Cowles and Hartpence
then got into a truck, drove to a liquor store to buy more alcohol, and then headed out of
town. Hartpence testified he drove the truck while Cowles gave him directions. Cowles
ultimately led Hartpence to Curtis' home in Nashville, Kansas, which was about 45
minutes to 1 hour away from Kingman. Hartpence testified that when they got there,
Cowles jumped out of the truck and ran towards Curtis' house. Hartpence followed
Cowles into the house at a slower pace and proceeded to the only light that was on in the
house, which was the back bedroom. Upon arriving at the bedroom, Hartpence saw
Cowles on the bed, straddling Curtis, and hitting Curtis in the face with a belt and belt
buckle wrapped around Cowles' right hand. Hartpence lunged and shoved Cowles off of
Curtis, at which time Hartpence testified Curtis may have started reaching for a handgun
on the nightstand. In what Hartpence described as a split-second decision, Hartpence used
the pistol to fire two rounds in Curtis' forehead, killing him. Cowles and Hartpence then
fled the house.

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Cowles and Hartpence were both arrested and charged with Curtis' murder.
Cowles was charged with second-degree murder. Hartpence pled guilty to first-degree
felony murder and testified at Cowles' trial. After a 4-day trial, a jury found Cowles
guilty.

ANALYSIS

Evidence of a cover up

At trial, the State introduced evidence that in the days after the incident, Cowles
talked to several people about killing Nicholas to cover up Curtis' murder. Specifically,
Cowles said he intended to make it look like Nicholas killed his father and then
committed suicide. Hartpence testified that after the murder, Cowles repeatedly said that
Nicholas "needed to be dealt with," and that Nicholas needed to be taken "out of the
equation." Hartpence testified that Cowles made these statements while making a gesture
with his hand that simulated pulling the trigger of a pistol under his chin. Alisha Hemken,
who was an acquaintance of Hartpence and Cowles, testified that Cowles asked her
several times for some of her sleeping pills in the days after the murder. When Hemken
asked him why he wanted the pills, Cowles explained that he was going to give them to
Nicholas to render Nicholas unconscious so Cowles "could take [Nicholas] out
somewhere and make it look like [Nicholas] killed himself." Despite Cowles' repeated
requests, Hemken refused to give him the sleeping pills. Finally, the State called as a
witness Stephanie Bacon, who was in a dating relationship with Hartpence at the time of
the incident. Bacon testified that Hartpence told her that Hartpence and Cowles had been
fighting after the murder, especially when Cowles suggested "'taking care of,'" i.e.,
killing, Nicholas.

Before trial, Cowles filed a motion in limine seeking to exclude evidence of "[a]ny
plan or effort by the defendant to kill Nicholas Shelton." At the hearing on the matter, the
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district court denied the motion, ruling that the evidence was admissible. Specifically, the
court stated the cover-up evidence was relevant to Cowles' consciousness of guilt, intent,
absence of mistake or accident, and plan. The district court judge acknowledged that
Cowles' argument that an attempted cover up did not necessarily indicate intent, but
explained that the evidence could "cut[] both ways," and it was for the jury to determine
which aspect to believe.

The district court's decision to permit the State to introduce evidence of Cowles'
plan to cover up Curtis' murder was made pursuant to K.S.A. 2016 Supp. 60-455. This
court reviews the district court's decision to admit evidence under that statute as follows:

 "'First, the district court must determine whether the fact to be proven is material,
meaning that this fact has some real bearing on the decision in the case. The appellate
court reviews this determination independently, without any required deference to the
district court.
 "'Second, the district court must determine whether the material fact is disputed and,
if so, whether the evidence is relevant to prove the disputed material fact. In making
this determination, the district court considers whether the evidence has any tendency
in reason to prove the disputed material fact. The appellate court reviews this
determination only for abuse of discretion.
 "'Third, if the fact to be proven was material and the evidence was relevant to prove a
disputed material fact, then the district court must determine whether the probative
value of the evidence outweighs the potential for undue prejudice against the
defendant. The appellate court also reviews this determination only for abuse of
discretion.'" State v. Richard, 300 Kan. 715, 721, 333 P.3d 179 (2014).

Cowles acknowledges that the issue of his intent is a disputed material fact here.
Nevertheless, Cowles argues the cover-up evidence is not relevant to his intent because
the alleged cover up took place after Curtis was killed. And even if relevant, Cowles
argues the court should have deemed the cover-up evidence inadmissible because the
evidence is more prejudicial than probative. The State disagrees with both of Cowles'
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arguments claiming the evidence is relevant to Cowles' intent because it demonstrates a
consciousness of guilt, which is material to intent and absence of mistake or accident, and
that the probative value of such evidence outweighs any prejudice to Cowles.

Given the arguments presented and the applicable law, we must decide two issues
related to the court's decision to permit the cover-up evidence to be introduced: first, did
the district court abuse its discretion in finding that the cover-up evidence was relevant,
i.e., had a tendency in reason to prove Cowles' intent with regard to the murder, and
second, did the district court abuse its discretion in finding that the probative value of the
cover-up evidence outweighed any prejudice to Cowles. The district court abuses its
discretion if its action is (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable
person would have taken the view adopted by the trial court; (2) is based on an error of
law; or (3) is based on an error of fact, i.e., if substantial competent evidence does not
support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). The
burden of proof is on the party alleging that the court abused its discretion. State v. Wells,
289 Kan. 1219, 1227, 221 P.3d 561 (2009).

Relevance

Relevant evidence is any evidence that has "any tendency in reason to prove any
material fact." K.S.A 60-401(b). Again, Cowles argues that the cover-up evidence is not
relevant to prove intent because the alleged plan was formed after the murder and, thus,
did not have any logical tendency to prove his state of mind before the murder. But
Kansas courts repeatedly have held that evidence of a defendant's actions after an event
can demonstrate the defendant's consciousness of guilt, which can be material to several
issues in a criminal case if those issues are disputed, including intent, identity, or plan.
See, e.g., State v. Huddleston, 298 Kan. 941, 960-61, 318 P.3d 140 (2014) (letters written
by defendant years after murder reveal defendant was conscious of her guilt and need to
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shift blame and, therefore, "can be material to several issues in a criminal case, including
intent, identity, plan, or other matters"); State v. Phillips, 295 Kan. 929, 948-49, 287 P.3d
245 (2012) (evidence of defendant's flight from police months after crime admissible as
relevant to intent and purpose for which crimes were committed; evidence "merely goes
to the weight of the evidence, once established it may certainly create a logical
connection that the fleeing was a result of guilty consciousness"); State v. Dixon, 289
Kan. 46, 70, 209 P.3d 675 (2009) (evidence of conversation after crime "material to
Dixon's possible consciousness of guilt and attempt at a coverup"); State v. White, 263
Kan. 283, 296, 950 P.2d 1316 (1997) ("White's conduct in taking affirmative and
intentional steps to destroy and conceal evidence of the crime after he killed his mother
indicates that he premeditated the killing.").

Here, a reasonable person could agree with the district court that Cowles' attempt
to shift blame for the murder may indicate that Cowles' plan to cover up the murder was a
result of his guilty conscious and, in turn, that such evidence had a tendency in reason to
prove Cowles' intent with regard to the murder. See Huddleston, 298 Kan. at 961.
Cowles' argument, that the evidence could also indicate that he was present for the
murder but was afraid of being blamed, merely provides an alternate explanation for the
cover up based on his version of the facts. The jurors were properly allowed to hear the
relevant cover-up evidence and could make findings of fact accordingly. Cowles
essentially asks this court to reweigh the evidence and come to a different conclusion
based on his account of the events. It is not the function of this court to reweigh evidence
or resolve evidentiary conflicts. State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328
(2013). The district court did not abuse its discretion in finding the cover-up evidence to
be relevant.

The evidence also was relevant to establish absence of mistake or accident. As
noted, Cowles asserts he did not know Hartpence was going to kill Curtis and, therefore,
the murder was a mistake or accident that Cowles simply did not see coming. The
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evidence of his plan to cover up the crime, however, does not support Cowles' assertion
in this regard. One can reasonably conclude that if Cowles truly was surprised by the
murder and was innocent of any wrongdoing, he would not suggest taking subsequent
steps so drastic as to murder another person in an attempt to cover it up. The fact that
Cowles did so tends to refute his defense and establish his willing participation in the
murder. Thus, again, we find the district court did not abuse its discretion in finding the
evidence to be relevant.

Probative value versus prejudicial impact

Cowles argues the district court abused its discretion in permitting the State to
introduce the cover-up evidence because it is evidence of a prior bad act or other crime
with limited probative value that is greatly outweighed by its prejudicial effect.
Specifically, Cowles argues the evidence unduly prejudiced him by providing the jury
with a factual basis from which it could infer that he "had no problem planning a
murder."

Even when evidence is both probative and material, the district court must still
determine whether the probative value of the evidence outweighs its potential for
producing undue prejudice. Appellate courts review this determination for abuse of
discretion. State v. Wilson, 295 Kan. 605, Syl. ¶ 1, 289 P.3d 1082 (2012). To demonstrate
an abuse of discretion, it is not enough to show that the evidence was prejudicial; rather,
the litigant challenging the admission of the evidence must "show that unfair or undue
prejudice arising from the admission of the evidence substantially outweighed its
probative value." See State v. Vasquez, 287 Kan. 40, 53, 194 P.3d 563 (2008).

Evidence of prior bad acts or other crimes is generally prohibited under K.S.A.
2016 Supp. 60-455(a) to prove a person's disposition to commit a crime or civil wrong as
the basis for an inference that the person committed another crime or wrong on another
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specified occasion. But such evidence can be admitted when relevant to prove some other
material fact, such as those listed in the statute, e.g., motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. K.S.A. 2016
Supp. 60-455(b). If evidence falling within the scope of K.S.A. 2016 Supp. 60-455 is
introduced at trial, the district court must give a limiting instruction to ensure the jury
considers the evidence only for the specific reason or reasons it is admitted. See State v.
Smith, 296 Kan. 111, 124, 293 P.3d 669 (2012).

At Cowles' trial, the district court followed the proper procedure before deciding
that the K.S.A. 2016 Supp. 60-455 evidence was admissible. First, the court determined
that the steps Cowles took to cover up his participation in the crime were a by-product of
his guilty conscious and, thus, the evidence had a tendency in reason to prove Cowles'
intent and absence of mistake with regard to the murder. Cowles agrees the issue of intent
was disputed. Finally, the district court discussed the probative value versus the
prejudicial nature of the cover-up evidence. The court determined the information was
not surprising or unduly prejudicial. Finally, the court then gave two prophylactic
limiting instructions to the jury with regard to consideration of the cover-up evidence:

"Instruction No. 3
"Evidence has been admitted tending to prove that the Defendant committed
crimes other than the present crime charged. This evidence may be considered solely for
the purpose of providing the Defendant's motive, intent, plan, identity, involvement,
consciousness of guilt, state of mind, control, and relationship to the parties.

"Instruction No. 4
"You are not allowed to consider evidence of actions taken by Dean Cowles,
after the commission of a crime of another, to prove the Defendant aided and abetted in
the commission of the crime of another.
"Rather, you are allowed to only consider this evidence as it tends to prove some
other material fact, such as the Defendant's motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake or accident, or consciousness of guilt."
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As specifically set forth in these limiting instructions, the district court permitted
the jury to consider the cover-up evidence for only limited reasons, none of which
included whether Cowles committed the murder at issue or aided and abetted another in
committing that murder. When considering prejudice, our Supreme Court has held: "[W]e
cannot ignore the district court's limiting instruction to the jury to consider the evidence
only for the purposes of identity and plan, and we presume the jury followed that
instruction." Wilson, 295 Kan. at 621. Similarly, the district court in this case gave a
limiting instruction to the jury to consider the evidence solely for the purpose of proving
Cowles' intent, plan, or absence of mistake or accident with respect to the charges against
him. For these reasons, the district court did not abuse its discretion in determining that
the probative value of the evidence was not outweighed by the potential for undue
prejudice.

Motions for new counsel

In his second issue on appeal, Cowles argues the district court abused its discretion
in denying two requests for new counsel: first at the pretrial motions hearing and second
at his sentencing hearing. Cowles was represented by two defense counsel, Jason Smartt
and Mark Rudy, in this matter.

A defendant has a right to effective assistance of counsel during all critical stages
of his or her criminal proceeding under the Sixth Amendment to the United States
Constitution. While the right to effective assistance of counsel does not include the right
to one's counsel of choice, Kansas law recognizes that an indigent criminal defendant
may demand a different appointed lawyer for good cause. See State v. Staten, 304 Kan.
957, 970, 377 P.3d 427 (2016).

"To warrant substitute counsel, a defendant must show justifiable dissatisfaction
with appointed counsel. Justifiable dissatisfaction sufficient to merit substitution of
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counsel includes a conflict of interest, an irreconcilable conflict, or a complete
breakdown in communications between the attorney and the defendant." State v. Jasper,
269 Kan. 649, Syl. ¶ 1, 8 P.3d 708 (2000).

Upon a showing of justifiable dissatisfaction, the district court must inquire to
assess the factual circumstances of the attorney-client relationship. State v. Brown, 300
Kan. 565, 577, 331 P.3d 797 (2014). Our Supreme Court recently articulated the three
possible errors that may result from the district court's inquiry:

"The first type of error occurs when a district court becomes aware of a potential conflict
of interest but fails to conduct an inquiry. Such a failure constitutes an error of law, that
is, a failure to follow the law and fulfill a legal duty. The second type of error occurs
when a district court conducts an inquiry but fails to do so in an appropriate manner. An
appropriate inquiry requires fully investigating both the basis for the defendant's
dissatisfaction with counsel and the facts necessary for determining whether the
dissatisfaction justifies appointing new counsel. The third type of error may occur when a
district court conducts an appropriate inquiry but fails to make a decision that is
reasonable in light of the facts that come to the fore. [Citation omitted.]" Staten, 304 Kan.
at 971.

This court may reverse only if judicial discretion has been abused. As we noted above, a
district court abuses its discretion if its action is arbitrary, grounded in legal error, or
grounded in factual error. Ward, 292 Kan. 541, Syl. ¶ 3.

Pretrial motions hearing

Cowles argues the district court erred at the April 2, 2015, pretrial motions hearing
by finding no breakdown in communication between Cowles and his attorneys. At that
hearing, Cowles alleged communication between him and his attorneys was a "brick
wall." He admitted that he received copies of the motions and pleadings filed in his case
but complained that his attorneys had not asked certain questions of witnesses in his case
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and had not obtained a hair follicle test as he had requested. Cowles also expressed strong
disagreement with his counsel's decisions regarding what witnesses to call and how to
conduct cross-examination of some witnesses.

The district court listened to Cowles' concerns and inquired about the basis of the
allegations from both his counsel. Smartt responded that he had provided regular copies
of pleadings to Cowles, he could easily catch Cowles up on any remaining copies of
discovery, and he had been focused more on witness statements than on providing exact
copies. He also explained that funding for the hair follicle test had not been approved and
that he did not believe that the results of the test would be exculpatory. Both Smartt and
Rudy opined that Cowles would have the same challenges with any other counsel
because no competent attorney would entertain the requests made by Cowles. Rudy
added that Cowles stopped communicating with counsel but that counsel was continuing
to communicate with Cowles; Rudy explained that Cowles was choosing not to
participate in discussions with his attorneys and opting not to consider their advice.

After hearing from all parties regarding Cowles' concerns, the district court
explained to Cowles that his counsel is responsible for looking at all the evidence in the
case to decide what witnesses to call, how to examine witnesses, and how to conduct the
trial based on their knowledge of the law. The court noted that while Cowles may have
disagreed with or disliked some of counsel's decisions, such a disagreement did not mean
that there was an irreconcilable conflict or that Cowles was precluded in some way from
communicating with his attorneys. The court ultimately found there was no conflict or
breakdown in communication to justify replacing counsel.

Cowles contends the district court abused its discretion in making this finding. In
support of his contention, Cowles points to the fact that his counsel did not disagree when
Cowles insisted at the hearing that their communication was a "'brick wall,'" and Rudy
even admitted that the communication was one-sided and called Cowles' requests
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"'nonsensical'" at times. We are not persuaded the district court abused its discretion. On
review, this court focuses on whether the attorney provided appropriate representation in
the adversarial process, not on the relationship between attorney and client. State v.
Pfannenstiel, 302 Kan. 747, 761-62, 357 P.3d 877 (2015). "[U]ltimately, as long as the
trial court has a reasonable basis for believing the attorney-client relation has not
deteriorated to a point where appointed counsel can no longer give effective aid in the
fair presentation of a defense, the court is justified in refusing to appoint new counsel."
State v. Bryant, 285 Kan. 970, Syl. ¶ 14, 179 P.3d 1122 (2008).

None of Cowles' arguments on appeal indicate that his counsel was unable to
provide effective representation. Upon review of the hearing transcript, it was Cowles,
not his counsel, who characterized the communication as a "brick wall," and Rudy
clarified that communication was only one-sided because Cowles had ceased
communicating with counsel regarding his defense. Finally, counsel submitted, and the
court agreed, that any substitute attorney would likely take a similar tactical approach and
have the same disagreement with Cowles. We agree with the district court that Cowles'
issues with his counsel appear to be based on his dissatisfaction with decisions his
counsel made regarding his defense, which do not require the appointment of new
counsel. See Pfannenstiel, 302 Kan. at 767 (disagreement regarding defense strategy,
including which witnesses to call, does not warrant new counsel); State v. Burnett, 300
Kan. 419, 450-51, 329 P.3d 1169 (2014) (no error in denying new counsel where defense
counsel "refus[ed] to investigate matters or to call witnesses which [defendant] deemed
important but, in defense counsel's professional judgment, would be beneficial to or
advance [defendant's] defense at trial"). Cowles simply fails to explain how his counsel's
decisions or statements negatively affected how those attorneys represented him as they
prepared for trial. As the district court found, the issues raised at the hearing did not rise
to the level warranting new counsel.


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Sentencing hearing

Cowles also argues the district court erred in denying a request for new counsel at
his sentencing hearing. Cowles alleges that the district court ignored his requests for new
counsel, and that when he attempted to interject in the proceedings, the court threatened
to have him removed from the courtroom. In response, the State asserts Cowles'
statements cannot be construed as a request for replacement counsel, that the district
court adequately inquired to determine the nature of his request, and that the threat to
remove Cowles from the courtroom was unrelated to a request for new counsel.

This issue requires an examination of the record of the sentencing hearing. Prior to
the case being called to order and immediately preceding a recess, Cowles stated:

"THE DEFENDANT: Your Honor—Your Honor, before we go any further, sir,
I'd like to reiterate to the Court's attention that back at arraignment I attempted to dismiss
counsel. I was refused to do that, sir.
"THE COURT: We're not going to remove counsel at this point in time.
"THE DEFENDANT: Your Honor, we were supposed to be in court 30 days ago,
and I've never seen this man until now."

At that point, the court went off record for a break. When the case was later called
and appearances entered, Cowles indicated that he wanted to appear pro se in addition to
with counsel. The judge previewed the motions set to be heard that day, after which the
following exchange occurred:

"[DEFENSE COUNSEL]: Judge, were we on the record before when you came
in and Mr. Cowles made his motion?
"THE COURT: Well, I hadn't even called the case when he started talking, but I
believe my court reporter got it.
"[DEFENSE COUNSEL]: Okay.
"THE COURT: He desires to represent himself at this sentencing hearing?
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Is that what you're saying, Mr. Cowles?
"THE DEFENDANT: No, sir, Your Honor. I propose to represent myself in the
Non-Disclosure of Exculpatory Evidence, Prosecutorial Misconduct, sir.
"THE COURT: If you're talking about this written document you filed this
morning, it's filed of record. Mr. Smartt is here to represent you this morning in the
sentencing, and that's how I intend to proceed unless I hear differently.
"THE DEFENDANT: Sir, there's reasonable cause to show that this has been a
miscarriage of justice and we need to stop now according to the 18th Amendment [to the
United States Constitution].
"THE COURT: Yeah, okay, I get it, and you're going to have a chance to give me
a statement in a little while, so—unless you're asking to have Mr. Smartt removed from
this sentencing hearing from representing you, we need to proceed the way I want to
proceed.
"THE DEFENDANT: You bet, Your Honor. It's definitely in the record that I
have objections against this attorneys [sic] taking care of me, sir—
"THE COURT: Sure.
"THE DEFENDANT: —so I believe that goes to the Supreme Court as well.
Thank you kindly."

The court then moved on to the motions set for the hearing. The first motion it
addressed was Cowles' motion for a new trial and judgment of acquittal. As the court
recounted the evidence presented at trial and explained its reasoning for denying the
motion, Cowles twice interrupted the court to comment on the facts of the case. The
district court judge advised Cowles that if he continued to interrupt the court, Cowles
would be removed from the courtroom. After the judge finished addressing the motions
set for the hearing, he invited Cowles to say anything he had to say to the court. Cowles
mainly addressed the factual evidence presented at trial.

Cowles argues on appeal that the district court abused its discretion by failing to
inquire into Cowles' request for new counsel after becoming aware of a potential conflict.
But our review of the record reveals that the district court made an inquiry and
determined that Cowles was not requesting new counsel with regard to the motions and
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sentencing before the court at that time. When specifically addressed by the court,
Cowles did not state with any specificity that he was arguing for new counsel with regard
to his sentencing but, rather, only referred to a previous request for new counsel and his
desire to represent himself with regard to his pro se motion filed that day. The court gave
Cowles several opportunities to clarify that he was requesting that Smartt not represent
him at that hearing, but Cowles did not make that assertion. The court was under no duty
to inquire further into the matter where Cowles did not assert a basis for requesting new
counsel. See Burnett, 300 Kan. at 450-51 (where defendant's statements regarding
defense counsel did not rise to level of alleging conflict of interest or breakdown in
communication, no duty for district court to inquire further, and no abuse of discretion in
refusing to appoint new counsel).

Cowles also argues that rather than inquiring about the basis for his request for
new counsel, the district court threatened to remove him from the courtroom. Again, our
review of the record does not support Cowles' argument. The record reveals that the
court's threat to have Cowles removed from the courtroom was related to Cowles'
interruption of the district court's discussion about the motion for a new trial and
judgment of acquittal, not about any request for new counsel. In sum, the district court
did not abuse its discretion in concluding that Cowles was not requesting new counsel for
sentencing at that hearing.

Affirmed.

* * *

ATCHESON, J., concurring: I concur in the result finding no basis to reverse
Defendant Dean Alan Cowles' conviction for intentional second-degree murder because
of the admission of the cover-up evidence, especially given how the issue has been
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presented on appeal. I join in the majority opinion on the second issue finding no error in
the district court's rulings on Cowles' requests for new counsel.