State v. Davis
| Decision Date | 12 October 1973 |
| Docket Number | No. 2394,2394 |
| Parties | The STATE of Arizona, Appellee, v. Stephen D. DAVIS, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Phoenix, by William P. Dixon, John S. O'Dowd, Asst. Attys. Gen., Tucson, and Donald R. Becker, Law Student, University of Ariz., for appellee.
Finn, Finn & Wilkes by Galen H. Wilkes, Phoenix, for appellant.
This is an appeal by the defendant, Stephen D. Davis, from a jury verdict and judgment of guilt to the crime of transportation of marijuana, § 36--1002.07 A.R.S., and a sentence of not less than five years nor more than five years and one day in the Arizona State Prison.
Defendant raises several issues on appeal but we need consider only one question: Was it reversible error to require counsel to represent both the defendant and an absent codefendant at a joint trial?
The facts necessary for a determination of the question before us are as follows. On 12 June 1970, the defendant left Phoenix, Arizona, in the company of his brother and codefendant, Randal Davis and a friend Joe Johnson, and drove to Nogales, Arizona. When they arrived in Nogales it was around 11 o'clock p.m. and they were placed under surveillance by officers of the city police department. The surveillance lasted for several hours. During that period officers observed the three companions drive across the international border into Mexico and return a short time later. After their return, they rendezvoused with one Carol Jacobs and one Charles Wallis, a couple they had previously met in Tucson when they stopped there to get gas en route from Phoenix. After the meeting officers saw two men, identified as the defendant Stephen Davis and his brother Randal, leave the scene of the meeting. When they were again spotted they were walking away from the Mexican border. Officers then observed the two men place gunny sacks into the trunk of a yellow Ford automobile driven by Charles Wallis and Carol Jacobs. A subsequent search of the automobile revealed two gunny sacks full of a substance suspected to be marijuana. Stephen and Randal Davis were thereafter arrested and charged with the transportation of marijuana.
Both defendants received the same court-appointed counsel. Some time prior to trial Randal escaped from custody, and a hearing was held to determine whether he should be tried in absentia. Mr. Wayne Cypert, defense counsel, objected to trying Randal at that time and the following transpired:
The court nevertheless decided to proceed to trial with the case against both Stephen and Randal Davis and with Mr. Cypert as the attorney for both defendants.
At the trial the defendant testified on his own behalf. He admitted that he had had some prior knowledge of a plan to procure marijuana, but he maintained that he had made it clear to his companions that he wanted no involvement in the matter, and further that he was not in fact involved.
A jury returned verdicts of guilty as to both Stephen and Randal Davis, but Stephen alone appeals.
The constitutional right of a defendant in a criminal case to the effective assistance of counsel is essentially denied where counsel is forced to represent...
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