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Your right to conflict free counsel & some ideas of what that looks like

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  • Legalbear
    VersusLaw Research Database People v. Edebohls, 944 P.2d 552 (Colo.App. 11/29/1996) [1] Colorado Court of Appeals [2] No. 94CA0911 [3] 944 P.2d
    Message 1 of 1 , Nov 18, 2004

      VersusLaw Research Database

      People v. Edebohls, 944 P.2d 552 (Colo.App. 11/29/1996)


            [1]     Colorado Court of Appeals



            [2]     No. 94CA0911



            [3]     944 P.2d 552, 1996.CO.40158 <http://www.versuslaw.com>



            [4]     Decided: November 29, 1996.








            [6]     Appeal from the District Court of Summit County. Honorable Terry

            W. Ruckriegle, Judge. No. 92CR142.



            [7]     Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief

            Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, M.

            Catherine Duba, Assistant Attorney General, Denver, Colorado, for




            [8]     David F. Vela, Colorado State Public Defender, Elizabeth Griffin,

            Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.



            [9]     Opinion by Judge Metzger. Hume and Roy, JJ., concur



            [10]    Metzger



            [11]    Defendant, Robert Edebohls, appeals the judgment of conviction

            entered on a jury verdict finding him guilty of violating the Colorado

            Organized Crime Control Act (the Act), § 18-17-101, et seq., C.R.S. (1986

            Repl. Vol. 8B). We reverse and remand with directions.



            [12]    On December 18, 1992, defendant was charged in a multi-count

            indictment alleging that he violated the Act by participating in a large

            cocaine distribution network in Summit County. According to the

            indictment, defendant had been a leader in a criminal enterprise involving

            racketeering and the sale of controlled substances in Summit County.



            [13]    Defendant retained private counsel (not the attorney representing

            him on appeal) to represent him at trial. In October 1993, defense counsel

            was charged with two counts of tampering with a witness and one count of

            bribery in a matter unrelated to defendant's case. Defense counsel told

            defendant of the charges pending against him.



            [14]    On January 12, 1994, at defendant's request, defense counsel

            withdrew from representation. He then reentered his appearance as counsel

            on January 14, 1994. Attached to his notice of reentry was a letter which

            read: "Dear [attorney]; This letter is to have you represent me on Feb.

            1st in Breckenridge. Sincerely, Bob Edebohls."



            [15]    On February 1, 1994, the morning of trial, the trial court, having

            learned of the pending charges against defense counsel from a newspaper

            article, questioned him about the situation. The trial court verified that

            counsel had been charged, the nature of the charges, and the fact that

            they were pending in the same district. Thereafter, the trial court held

            an on the record Discussion with defendant in chambers to determine if he

            wished to proceed with defense counsel or to have new counsel appointed.

            Neither defense counsel nor the prosecutor was allowed to attend. After

            this inquiry, the trial court determined that defendant had expressed his

            desire to proceed with defense counsel's representation.



            [16]    Trial resulted in the conviction here at issue.


       The court refused to reverse on other issues but, when it came to the conflict of counsel issues, it said this:


       [33]    III.



            [34]    Defendant contends that the trial court erred by interviewing him,

            in chambers, without the benefit of counsel, to determine whether he

            wished to retain his attorney or have a new attorney appointed to

            represent him. Defendant further contends that the interview resulted in

            an invalid waiver of conflict-free counsel, thus requiring the reversal of

            his conviction. Under the unique circumstances here, we agree.



            [35]    The Sixth Amendment and Colo. Const. art. II, § 16, guarantee a

            defendant the right to effective assistance of counsel. People v. Castro,

            657 P.2d 932 (Colo. 1983). A defendant's right to effective assistance of

            counsel includes the right to conflict-free representation. Holloway v.

            Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978); People v.

            Martinez, 869 P.2d 519 (Colo. 1994).



            [36]    A.



            [37]    Defendant first argues that, because criminal charges were pending

            against defense counsel, an actual conflict of interest existed. We agree.



            [38]    In general, a conflict of interest exists when: (1) an attorney's

            representation of one client is directly adverse to another client, (2)

            when the attorney's ability to represent a client is materially limited by

            the attorney's responsibility to another client or to a third person, or

            by the attorney's own interests. See Rules of Professional Conduct 1.7(a)

            and (b).



            [39]    A conflict of interest exists when defense counsel has been

            charged with a crime and is susceptible to prosecution, during the

            pendency of the representation of his or her client, by those responsible

            for the client's prosecution. See United States v. DeFalco, 644 F.2d 132

            (3d Cir. 1979)(finding conflict of interest as a matter of law when

            appellate defense counsel was indicted during pendency of appeal in the

            same district in which his client was being prosecuted); United States v.

            McLain, 823 F.2d 1457 (11th Cir. 1987)(finding actual conflict when

            defense counsel was under investigation before and during defendant's

            trial and defense counsel had personal interest in extending duration of

            defendant's trial); see also Vance v. Lehman, 64 F.3d 119 (3d. Cir.

            1995)(fn. 2); Sanchez v. Arkansas, 296 Ark. 295, 756 S.W.2d 452 (1988).



            [40]    Once a potential conflict of interest becomes reasonably apparent,

            defense counsel has a duty to advise the defendant of the nature of the

            conflict and, in plain terms, to describe the specific ways in which the

            conflict may affect his or her ability to represent the defendant

            effectively at various stages of the case. Defense counsel should then

            place on the record the potential conflict of interest and should further

            advise the court that as complete a disclosure as possible has been made

            to the defendant. People v. Castro, supra (fn. 10); see also Rodriguez v.

            District Court, 719 P.2d 699 (Colo. 1986).



            [41]    Unless the trial court knows or reasonably should know of a

            particular conflict, the court need not inquire into the propriety of

            continued representation. Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct.

            1708, 64 L. Ed. 2d 333 (1980). But, once the trial court is on notice of a

            conflict, it has a duty to make such an inquiry. Holloway v. Arkansas,




            [42]    After a defendant has consulted with either defense counsel or

            independent conflict advisement counsel, the trial court should then seek

            from the defendant a narrative response, on the record, indicating his or

            her understanding of the right to conflict-free representation and a

            description of the conflict at issue. Throughout this inquiry, the trial

            court should actively seek to clarify any confusion the defendant may have

            about the advisement. See United States v. Garcia, 517 F.2d 272 (5th Cir.




            [43]    Because the same district attorney's office was responsible for

            the prosecutions of both defendant and defense counsel, defense counsel

            may well have been "subject to the encumbrance that the prosecutor might

            take umbrage at a vigorous defense" of defendant and become more ardent in

            the prosecution of defense counsel. See People v. Castro, supra, 657 P.2d

            at 945. Under these circumstances, we conclude that an actual conflict of

            interest existed. See People v. Castro, supra; see also United States v.

            DeFalco, supra.



            [44]    The procedure to be followed when, as here, a trial court is given

            notice that defense counsel in a criminal case has a conflict of interest

            is as follows. The court should first inquire whether defense counsel has

            advised the defendant about the right to conflict-free representation and

            has explained the nature of the particular conflict at issue, including

            the risks associated with continued representation. If defense counsel

            indicates this has not occurred, counsel should be required to do so. See

            People v. Castro, supra (fn. 10). To protect the client-attorney

            relationship, such consultations need not be presented on the record or in

            open court.



            [45]    In the trial court's discretion, it may appoint temporary

            advisement counsel to counsel the defendant concerning the right to

            effective assistance of counsel and the risks associated with proceeding

            in spite of defense counsel's conflict of interest. See generally United

            States v. Garcia, supra; see Tyson v. District Court, 891 P.2d 984 (Colo.

            1995); People v. Martinez, supra; see also Commonwealth v. Jones, 403

            Mass. 279, 526 N.E.2d 1288 (1988); State v. Kezer, 918 S.W.2d 874 (Mo.

            App. 1996).



            [46]    B.



            [47]    Defendant next argues that he was inadequately advised of the

            nature of the conflict and of the risks associated with waiving

            conflict-free representation and, therefore, there was no valid waiver of

            that right. Again, in these unique circumstances, we agree.



            [48]    Because a defendant has a right to retain counsel of his or her

            own choice, Anaya v. People, 764 P.2d 779 (Colo. 1988), a defendant may

            choose to waive conflict-free representation. Tyson v. District Court,




            [49]    A waiver of the right to conflict-free counsel must be made

            voluntarily, knowingly, and intelligently. "The record must affirmatively

            show that the trial court fully explained the nature of the conflict and

            the difficulties defense counsel faced in his effective advocacy for the

            defendant." People v. Martinez, supra, 869 P.2d at 525.



            [50]    The prosecution bears the burden of showing that the defendant was

            aware of the conflict and of its likely effect on defense counsel's

            ability to offer effective representation, and that the defendant

            thereafter voluntarily, knowingly, and intelligently waived his or her

            right to conflict-free representation. People v. Martinez, supra.



            [51]    If the defendant reveals that he is aware of and understands the

            various risks and pitfalls, and that he has the rational capacity to make

            a decision on the basis of this information, and if he states clearly and

            unequivocally . . . that he nevertheless chooses to hazard those dangers,

            we would regard his waiver as knowing and intelligent and allow his choice

            to be 'honored out of 'that respect for the individual which is the life

            blood of the law.' United States v. Curcio, 680 F.2d 881, 888-89 (2d Cir.




            [52]    Other general factors that courts have considered in determining

            whether a waiver is knowing and intelligent include: "whether the exchange

            between the defendant and the Judge consisted of pro forma answers to pro

            forma questions, and whether the defendant was attempting to delay or

            manipulate the proceedings." People v. Arguello, 772 P.2d 87, 95 (Colo.




            [53]    Here, after verifying that defense counsel had been charged by the

            same prosecutor's office that charged defendant, the trial court


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