from the Superior Court in Cochise County No. CR201700136 The
Honorable James Conlogue, Judge
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Joshua C. Smith, Assistant Attorney General,
Phoenix Counsel for Appellee
J. DeRienzo, Prescott Valley Counsel for Appellant
Eckerstrom authored the opinion of the Court, in which
David Duffy appeals his convictions and sentences for
conspiracy, transportation of marijuana for sale, and
possession of drug paraphernalia. For the reasons that
follow, we vacate and remand.
and Procedural History
"We view the facts and all reasonable inferences
therefrom in the light most favorable to upholding the
verdicts." State v. Tamplin, 195 Ariz. 246,
¶ 2 (App. 1999). In January 2017, a sergeant with the
Arizona Department of Public Safety was monitoring traffic on
a highway. He received a call from a Border Patrol agent, who
had seen a green sports utility vehicle (SUV) driving
suspiciously close behind another car. The sergeant then
began watching for the vehicles the Border Patrol agent had
Shortly afterward, the sergeant saw two vehicles matching the
agent's description: a green SUV following a red sedan at
an unsafe distance in the right lane. He followed the SUV and
paced it traveling approximately five miles per hour over the
posted speed limit. He also observed the SUV make an abrupt
lane change, cutting off another car that was traveling in
the left lane, which was forced to change lanes to avoid a
collision. Unbeknownst to the sergeant, the Border Patrol
agent was driving that car. The agent had followed the SUV
and pulled up near it to see if any suspicious people or
bundles were visible in the back.
After the SUV made another abrupt lane change, the sergeant
conducted a traffic stop based on the SUV's unsafe
following distance, violation of the speed limit, and first
abrupt lane change. He found Duffy in the driver's seat
and Duffy's codefendant, Dora Matias, in the passenger
seat. Once the driver's side window was open, the
sergeant was able to see burlap-wrapped bundles through the
tinted back windows of the SUV. Based on his experience, he
suspected the bundles contained marijuana, and he placed
Duffy and Matias under arrest. Later testing revealed the
bundles contained over 240 pounds of marijuana.
A grand jury charged Duffy and Matias each with conspiracy,
possession and transportation of marijuana for sale, and
unlawful possession of drug paraphernalia. They stood trial
together, represented by the same retained counsel, and the
jury found them guilty on all counts. The trial court
sentenced Duffy to three concurrent prison terms, the longest
of which is six years. This appeal followed. We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A)(1).
Duffy contends the trial court erred in allowing the same
attorney to represent both Duffy and his codefendant, Matias,
during the trial despite the prosecutor's repeated
warnings that this constituted a conflict of
interest. The state counters that Duffy essentially
describes a claim for ineffective assistance of counsel,
which cannot be raised on direct appeal.
We review alleged violations of a defendant's Sixth
Amendment right to counsel de novo. State v. Boggs,
218 Ariz. 325, ¶ 50 (2008). For the reasons that follow,
we conclude that, to the extent Duffy claims the trial court
erred in allowing joint representation during his trial, we
may properly address that claim on appeal. We further
conclude that the trial court, having been alerted to the
potential conflict between Duffy and Matias, erred by failing
to conduct an adequate inquiry into the propriety of joint
representation in this case or the validity of Duffy's
purported waiver of his constitutional right to conflict-free
counsel. Finally, we conclude that Duffy has satisfied his
burden of establishing that his trial counsel had an actual
conflict of interest that adversely affected his
representation of Duffy, requiring that his conviction be
vacated and his case remanded for a new trial.
of Direct Appeal
The state is correct that, if Duffy believes particular
decisions, acts, or omissions of his defense attorney at
trial rendered his counsel ineffective, such a claim must be
raised in a petition for post-conviction relief brought
pursuant to Rule 32, Ariz. R. Crim. P., and may not be
addressed by this court on direct appeal regardless of its
merit. State v. Spreitz, 202 Ariz. 1, ¶ 9
(2002). However, this rule does not preclude Duffy from
challenging on direct appeal the trial court's failure to
discharge its duty to protect Duffy's constitutional
right to conflict-free counsel.
As the United States Supreme Court has explained, a trial
court's "duty of seeing that the trial is conducted
with solicitude for the essential rights of the accused"
includes the duty to "protect the right of an accused to
have the assistance of counsel" during trial.
Holloway v. Arkansas, 435 U.S. 475, 484 (1978)
(quoting Glasser v. United States, 315 U.S. 60, 71
(1942)). That right-which is enshrined in the Sixth
Amendment of the United States Constitution, article II,
§ 24 of the Arizona Constitution, and Rule 6.1, Ariz. R.
Crim. P.-includes the right to an attorney free from
conflicts of interest. Wood v. Georgia, 450 U.S.
261, 271 (1981) ("Where a constitutional right to
counsel exists, . . . there is a correlative right to
representation that is free from conflicts of
interest."); Maricopa Cty. Pub. Def.'s Office v.
Superior Court, 187 Ariz. 162, 165 (App. 1996)
("The guarantees of the Sixth Amendment include the
right to an attorney with undivided loyalty.").
The United States Supreme Court instructs that, where trial
counsel has "focused explicitly on the probable risk of
a conflict of interests"-as the prosecutor undoubtedly
did in this case-the trial court must "take adequate
steps to ascertain whether the risk [is] too remote to
warrant separate counsel." Holloway, 435 U.S.
at 484; see also Cuyler v. Sullivan, 446 U.S. 335,
346 (1980) ("Holloway requires state trial
courts to investigate timely objections to multiple
representation."). A trial court's failure to
discharge this duty "deprive[s] [defendants] of the
guarantee of 'assistance of counsel.'"
Holloway, 435 U.S. at 484.
As the dissent in Holloway clarified, the
majority's approach in that case was "not premised
on an ultimate finding of conflict of interest or ineffective
assistance of counsel." Id. at 492 (Powell, J.,
dissenting). Rather, the Court presumed prejudice from the
judge's failure to conduct a "requisite
inquiry," "equating that failure with a violation
of the Sixth Amendment guarantee." Id.; see also
Cuyler, 446 U.S. at 345 (explaining Holloway
"held that the trial court's error
unconstitutionally endangered the right to counsel").
Thus, a defendant may challenge such a constitutional
infirmity on direct appeal without reference to the
competence or particular acts or omissions of his counsel,
even if the effectiveness of his counsel may also be subject
to review in subsequent Rule 32 proceedings.
The state argues that the appealability of this claim is
controlled by our state supreme court's holding in
Spreitz. There, the court mandated that all claims
challenging the conduct of trial counsel must be brought in
Rule 32 proceedings rather than on direct appeal.
Spreitz, 202 Ariz. 1, ¶ 9. In so doing, it
clarified or disapproved of its prior cases that had
addressed such claims piecemeal. Id. ¶ 11. But
those cases all involved claims that particular decisions,
behaviors, or failures of trial counsel rendered their
assistance ineffective. None involved claims that the trial
court had erred. Id. ¶¶ 2-3, 11
("modifying] and clarify[ing]" State v.
Tison, 142 Ariz. 454 (1984), State v. Carriger,
132 Ariz. 301 (1982), and State v. Watson, 114 Ariz.
1 (1976); "disapproving] of" State v.
Scrivner, 132 Ariz. 52 (App. 1982)).
We recognize that when the record supports a plausible claim
that the trial court erred in allowing conflicted counsel to
represent a defendant, the record might also support a
parallel claim of ineffective assistance of counsel. Our
courts, however, have had no difficulty distinguishing the
two. In State v. Tucker, 205 Ariz. 157 (2003),
issued a year after Spreitz, the supreme court
reached on appeal the merits of Tucker's claim that the
trial court violated his right to the assistance of
conflict-free counsel. Id. ¶¶ 19-37. In so
doing, the court declined to address those arguments that
sounded as ineffective assistance of counsel and for which a
record had not been developed. Id. ¶ 26.
Our conclusion finds support in Arizona jurisprudence
predating the Spreitz rule as well. That
jurisprudence has routinely addressed conflict claims on
direct appeal. As discussed, Spreitz identified and
disapproved of particular cases, most of which involved
ineffective-assistance-of-counsel claims that had been raised
piecemeal. But the court neither mentioned nor disapproved of
its own prior cases in which direct appeal was effectively
sought by defendants raising the specific claim here: that a
trial court had erroneously required or allowed conflicted
joint representation, in violation of the Sixth Amendment.
See, e.g., State v. Martinez-Serna, 166 Ariz. 423,
424-26 (1990); State v. Davis, 110 Ariz. 29, 31
(1973); State v. Cox, 109 Ariz. 144, 145 (1973);
State v. Bush, 108 Ariz. 148, 150 (1972); State
v. Belcher, 106 Ariz. 170, 170, 172 (1970).
Thus, the rule articulated in Spreitz applies only
to claims of counsel incompetency. In State v.
Jenkins, our supreme court had previously clarified that
such claims are distinct from claims of "conflict of
interest due to multiple representation of
co-defendants." 148 Ariz. 463, 465-66 (1986). The latter
claims are governed by Cuyler and do not require
proof of prejudice. Id. For this reason, the
Spreitz rule does not extend to claims, like the one
Duffy presents here, that the trial court failed to protect a
criminal defendant's right to counsel by meaningfully
investigating timely objections to joint representation. We
hold, in conformity with both federal and state authority,
that such a claim may still be raised on direct
appeal.We therefore turn to the merits of that
claim on the record before us.
of the Trial Court's Inquiry
When a trial court "knows or reasonably should
know" that a conflict may exist,  it must initiate
an inquiry. Cuyler, 446 U.S. at 347; see also
Wheat v. United States, 486 U.S. 153, 160 (1988)
("[A] court confronted with and alerted to possible
conflicts of interest must take adequate steps to ascertain
whether the conflicts warrant separate counsel.");
Wood, 450 U.S. at 272 (when
"possibility of a conflict of interest [is]
sufficiently apparent," this "impose[s] upon the
court a duty to inquire further"); United States v.
Allen, 831 F.2d 1487, 1494 (9th Cir. 1987) ("Trial
courts presented with a possible conflict have an affirmative
duty to protect a defendant's rights, which duty arises
when the possibility of conflict is 'brought home to the
court.'" (citation omitted) (quoting
Holloway, 435 U.S. at 485)).
In this case, the prosecutor's cautionary comment at the
arraignment was sufficient to trigger the trial court's
duty to inquire. Wood, 450 U.S. at 272-73 ("Any
doubt as to whether the court should have been aware of the
problem is dispelled by the fact that the State raised the
conflict problem explicitly and requested that the court look
into it."). In apparent recognition of this duty, the
court scheduled a review hearing to address the issue of
joint representation. We must therefore determine whether, at
that hearing, the court satisfied its duty of "jealously
guarding" Duffy's rights. Glasser, 315 U.S.
Our review of the record compels a conclusion that the trial
court failed to meet this standard. At the review hearing,
defense counsel insisted that there was "no cognizable
issue for this case" because both defendants were
identically situated, had "essentially . . . a common
defense agreement," and had signed a waiver after being
adequately advised of their rights. The prosecutor responded
that the case presented "competing interests" and
"a potential for adverse defenses," especially if
it proceeded to trial. He warned that "there are
circumstances under which it's inappropriate to even
consider a waiver of the conflict," although he stopped
short of opining on whether the conflict in this case was
unwaivable. Without inquiring any further, and based entirely
on the foregoing exchange, the court found: "It appears
that the defendants have been fully advised with regard to
this situation." The court then stated: "I will
defer to [defense] counsel. I am required [to] do that in any
event, but I would, even if not required." The court did
not directly address either defendant.
A criminal defendant may generally waive his constitutional
right to conflict-free counsel. Holloway, 435 U.S.
at 483 n.5 ("[A] defendant may waive his right to the
assistance of an attorney unhindered by a conflict of
interests."); see also Martinez-Serna, 166
Ariz. at 425. However, the "[w]aiver of a
constitutional right is a matter of grave concern," and
"a constitutional waiver is not valid unless the
defendant manifests 'an intentional
relinquishment or abandonment of a known right or
privilege.'" State v. LaGrand, 152 Ariz.
483, 487 (1987) (emphasis added in Montano) (quoting
Montano v. Superior Court, 149 Ariz. 385, 392 (1986)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938))). Put otherwise, "[a] defendant's waiver of
his Sixth Amendment rights must be knowing, voluntary, and
intelligent," State v. Brown, 212 Ariz. 225,
¶ 15 (2006), "which depends in each case 'upon
the particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the
accused, '" Edwards v. Arizona, 451 U.S.
477, 482 (1981) (quoting Zerbst, 304 U.S. at 464).
Jurisprudence controlling on this court has applied this
standard not only to the complete waiver of counsel, but also
to the waiver of the Sixth Amendment right to conflict-free
counsel. See, e.g., Von Moltke v. Gillies, 332 U.S.
708, 725-26 (1948) (record must support that defendant
"intelligently and understandingly" waived Sixth
Amendment right to counsel, which entitles defendant to
counsel's "[u]ndivided allegiance and faithful,
devoted service"); Tucker, 205 Ariz. 157,
¶ 33 (citing Von Moltke); Martinez-Serna, 166
Ariz. at 424-26 (reversing conviction where defendant did not
knowingly waive right to separate counsel and actual conflict
adversely affected representation); see also Lockhart v.
Terhune, 250 F.3d 1223, 1232 (9th Cir. 2001) (to be
valid, defendant's waiver of "right to conflict-free
counsel . . . must have been given knowingly and
Arizona courts have not articulated the particular steps a
court must take to establish that a defendant has knowingly,
voluntarily, and intelligently waived his right to
conflict-free counsel. But our supreme court has specifically
held such a waiver must conform to the same standards set
forth when a defendant seeks to waive counsel altogether.
See Martinez-Serna, 166 Ariz. at 425 (court must
establish valid waiver "in the manner required by
Johnson v. Zerbst"); see also Wood,
450 U.S. at 271 (right to conflict-free counsel sounds as
species of right-to-counsel claim). In the latter context, a
trial court must both warn a defendant of "the dangers
and disadvantages of self-representation" and
"ensure" that the defendant understands them.
State v. Cornell, 179 Ariz. 314, 323-24 (1994)
(citing standards set forth in Faretta v.
California, 422 U.S. 806, 835 (1975)); see also
State v. Dann, 220 Ariz. 351, ¶ 24 (2009)
(requiring both court warning and defendant understanding);
State v. Hampton, 208 Ariz. 241, n.3 (2004) (courts
should conduct "on-the-record colloquy" with
defendant as to "risks of self-representation"
(quoting United States v. Goldberg, 67 F.3d 1092,
1099, 1100-01 (3d Cir. 1995))). If we follow our supreme
court's directive to apply the same standards here, a
valid waiver would require that the court advise the
defendant of the "dangers and disadvantages" of
retaining potentially conflicted counsel and ensure that the
defendant understands them. Cf. Tucker, 205 Ariz.
157, n.4 (accepting state's concession that record was
insufficient to establish valid waiver even where trial court
tersely alerted defendant to potential conflict and defendant
specifically responded that he nonetheless wished to proceed
with his counsel).
Our nation's federal courts have similarly required a
direct exchange between the trial court and defendant once
the duty to inquire has been triggered. For example, in
United States v. Migliaccio, the Tenth Circuit
reasoned that "the court's participation is integral
to a valid waiver" of the right to conflict-free
counsel. 34 F.3d 1517, 1527 (10th Cir. 1994). In particular,
it clarified that "the trial judge should affirmatively
participate in the waiver decision by eliciting a statement
in narrative form from the defendant indicating that he fully
understands the nature of the situation and has knowingly and
intelligently made the decision to proceed with the
challenged counsel." Id. (quoting United
States v. Winkle, 722 F.2d 605, 611 (10th Cir. 1983)).
In Lewis v. Mayle, notwithstanding evidence that a
defendant had signed a written waiver and discussed the
potential conflict with his attorney, the Ninth Circuit still
found the record inadequate because the trial court "had
only a cursory discussion" with the defendant and failed
to establish that he "understood 'any of the
specific ramifications of his waiver.'" 391 F.3d
989, 995-97 (9th Cir. 2004) (quoting Lockhart, 250
F.3d at 1233). See also United States v. Alred, 144
F.3d 1405, 1411 (11th Cir. 1998) (waivers of ...