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State v. Duffy

Court of Appeals of Arizona, Second Division

November 1, 2019

The State of Arizona, Appellee,
David Joseph Duffy, Appellant.

          Appeal from the Superior Court in Cochise County No. CR201700136 The Honorable James Conlogue, Judge

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Joshua C. Smith, Assistant Attorney General, Phoenix Counsel for Appellee

          Daniel J. DeRienzo, Prescott Valley Counsel for Appellant

          Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge


          ECKERSTROM, Judge

         ¶1 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.

         Facts and Procedural History

         ¶2 "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 described.

         ¶3 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.

         ¶4 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.

         ¶5 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).

         Joint Representation

         ¶6 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.[1] The state counters that Duffy essentially describes a claim for ineffective assistance of counsel, which cannot be raised on direct appeal.

         ¶7 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.[2]

         Availability of Direct Appeal

         ¶8 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.

         ¶9 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)).[3] 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.").

         ¶10 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.

         ¶11 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.

         ¶12 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)).

         ¶13 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.

         ¶14 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).

         ¶15 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.[4]We therefore turn to the merits of that claim on the record before us.

         Adequacy of the Trial Court's Inquiry

         ¶16 When a trial court "knows or reasonably should know" that a conflict may exist, [5] 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)).[6]

         ¶17 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. at 71.

         ¶18 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.

         ¶19 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.[7] 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).

         ¶20 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 intelligently").[8]

         ¶21 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.[9] 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).

         ¶22 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 ...

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