State v. Bush, 2240

Decision Date24 February 1972
Docket NumberNo. 2240,2240
Citation108 Ariz. 148,493 P.2d 1205
PartiesThe STATE of Arizona, Appellee, v. James Robert BUSH, Appellant.
CourtArizona Supreme Court

Gary K. Nelson, Atty. Gen., by John S. O'Dowd and Jack M. McCormick, Asst. Attys. Gen., Phoenix, for appellee.

Howard A. Kashman, Pima County Public Defender, by Eleanor Daru Schorr, Deputy Public Defender, Tucson, for appellant.

CAMERON, Vice Chief Justice.

This is a delayed appeal from a judgment of guilt as a result of pleas of guilty to one count of aggravated assault and one count of robbery with concurrent sentences of not less than three nor more than five years and not less then ten nor more than twelve years.

We need consider only one question:

Was it error for the trial court to refuse to allow appointed defense counsel to withdraw as counsel for defendant after counsel informed the court that a conflict existed between the appellant and his co-defendant?

The facts necessary for a determination of this matter are as follows. On 15 August 1967, a criminal complaint was filed charging defendant Bush, along with David Martinez Laguna and David Aguilar Valenzuela, with robbery, assault with intent to commit robbery, and aggravated assault. The defendants Bush and Valenzuela were 'bound over' to the Superior Court and on 1 September 1967, an information was filed against defendant and Valenzuela for assault with intent to commit robbery, aggravated assault, and robbery. Both defendants entered pleas of 'not guilty' and counsel, Ronald W. Sommer, was appointed to represent them.

Counsel, on 30 October 1967, made the following written motion to the trial court:

'RONALD W. SOMMER, appointed by this honorable Court to represent both of the above-named defendants, hereby requests that he be permitted to withdraw as counsel for JAMES ROBERT BUSH and continue only as counsel for DAVID AGUILAR VALENZUELA. This request is made for the following reasons:

'1) Defendant BUSH has refused to co-operate with counsel in the preparation of the case for defense at trial;

'2) Counsel has become convinced that a conflict exists between the interests of the defendant and that he cannot in good conscience represent them both. Counsel has decided that it is in the best interest of defendant VALENZUELA that he take the stand in his own defense. VALENZUELA'S testimony, however, will be damaging to his co-defendant. If counsel must represent BUSH also then he would feel obligated to prevent such testimony from coming out. Therefore, BUSH should be given separate counsel.'

Attached was an affidavit by the co-defendant Aguilar Valenzuela:

'DAVID AGUILAR VALENZUELA, a defendant in case No. A--16057 in The Superior Court of Arizona, In and For Pima County, makes this affidavit at the request of his attorney, RONALD W. SOMMER, for the purposes of supporting the request of said attorney that he be allowed to withdraw as counsel for affiant's co-defendant, for no other purpose, and in the express understanding that he does not hereby waive his rights against self-incrimination under the Constitutions of the United States or the State of Arizona.

'STATE OF ARIZONA)

COUNTY OF PIMA)

'Being first duly sworn, DAVID AGUILAR VALENZUELA deposes and says:

'1) that he is a defendant in the above-named case No. A--16057;

'2) that upon the advice of his attorney he intends to take the witness stand in his own defense at the trial of his case;

'3) that in his testimony he will admit to being present at an incident in Tucson, Arizona, which led to charges being brought against him and for which he will be tried before this Court;

'4) that his testimony will implicate JAMES ROBERT BUSH, a co-defendant in case No. A--16057, and attribute to him certain acts which were in violation of the laws of the State of Arizona.'

The defendant's motion was opposed as follows:

'COMES NOW the Pima County Attorney, WILLIAM J. SCHAFER III, by and through his deputy, HORTON C. WEISS, and opposes the request for leave to withdraw as counsel and for new counsel to be appointed for one defendant (BUSH), and asks that this motion be denied for the following reasons:

1. Counsel's motion to withdraw, as counsel, has heretofore been denied by this honorable court;

2. No sufficient showing has been made of a conflict of interest;

3. If counsel is permitted to withdraw as to one defendant and permitted to represent the other, the conflict of interest will continue to exist as to the defendant not represented by counsel.'

The motion for leave to withdraw as counsel for defendant Bush was denied. The jury was selected on 5 December 1967 and on the 6th, after counsel made their opening statements, defendants' attorney informed the court, in the absence of the jury, that both defendants wished to change their pleas to guilty to robbery and aggravated assault.

After extensive interrogation by the court, the pleas were accepted, judgment entered, and sentence imposed as indicated.

We granted defendant's motion for delayed appeal on 5 February 1971 and counsel was appointed to represent him.

WAS IT ERROR FOR THE TRIAL COURT TO REFUSE TO ALLOW DEFENSE COUNSEL TO WITHDRAW?

Throughout the criminal process, a criminal defendant has a right to effective assistance of counsel who is untrammeled by possible conflicts of interest:

'To determine the precise degree of prejudice sustained by Glasser as a result of the court's...

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5 cases
  • State v. Duffy, 2 CA-CR 2018-0071
    • United States
    • Arizona Court of Appeals
    • November 1, 2019
    ..., 110 Ariz. 29, 31, 514 P.2d 1025, 1027 (1973) ; State v. Cox , 109 Ariz. 144, 145, 506 P.2d 1038, 1039 (1973) ; State v. Bush , 108 Ariz. 148, 150, 493 P.2d 1205, 1207 (1972) ; State v. Belcher , 106 Ariz. 170, 170, 172, 472 P.2d 39, 39, 41 (1970). ¶15 Thus, the rule articulated in Spreitz......
  • State v. Ortiz, 4818
    • United States
    • Arizona Supreme Court
    • November 23, 1981
  • State v. Asbury
    • United States
    • Arizona Court of Appeals
    • November 13, 1984
  • State v. Tull
    • United States
    • Arizona Court of Appeals
    • November 8, 2016
    ...withdrawal." Maricopa Cnty. Pub. Defender's Office v. Superior Court (Nelson), 187 Ariz. 162, 167 (App. 1996); see also State v. Bush, 108 Ariz. 148, 151 (1972) (finding "clear showing of a conflict" of interest); Okeani v. Superior Court (Romley), 178 Ariz. 180, 182 (App. 1993) (finding co......
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