Chavez v. State

• Decision Date: 28 December 1979
• Docket Number: No. 5119,5119
• Citation: 604 P.2d 1341
• Parties: Albert CHAVEZ, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1341

604 P.2d 1341

Albert CHAVEZ, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5119.

Supreme Court of Wyoming.

Dec. 28, 1979.

Rehearing Denied Jan. 14, 1980.

Tom C. Toner of Redle, Yonkee & Arney, Sheridan, for appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Richard Scott Rideout, Asst. Atty. Gen. (argued), and Berry F. Laws, III, Legal Intern, on brief, for appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

This is an appeal from the judgment rendered on a jury verdict finding appellant-defendant guilty of two counts of forgery and one count of habitual criminal. Appellant was sentenced to a prison term of five to ten years on each count of forgery and a term of ten to thirty years on the habitual criminal count, the sentences to run consecutively.

Appellant phrases his contentions of reversible error as follows:

1. "The Appellant was denied due process and effective assistance of counsel when his court appointed attorney made a deal with the State to have one of his other clients testify against his other client."

2. "There was a reasonable likelihood that the Appellant could not receive a fair trial in Sheridan County because of the jurors' awareness of newspaper reports relating to sex crimes with which Appellant had been charged shortly before trial; therefore, a change of venue should have been granted."

3. "The police officer with a three week course in document analysis taken five years ago was not an expert in handwriting analysis."

4. "Introducing authenticated copies of prior judgments bearing the same name as the Appellant is not sufficient to establish beyond a reasonable doubt that the Appellant is the person named in those judgments."

We find no error with reference to the first three of these contentions and thus affirm the judgment as it pertains to the conviction on the forgery charges. We find error in the failure to establish the necessary element of identity on the habitual criminal status and, therefore, reverse the judgment as it pertains to it and remand the case for further proceedings relative to the sentence. The facts required for our determination of the appellant's separate contentions of error will be set forth in the discussion of each contention.

ATTORNEY REPRESENTATION

On September 6, 1978, appellant was charged with an unrelated offense, and a particular Assistant Public Defender (hereinafter referred to as "Assistant Public Defender") was appointed on that date to represent him. On the same day, Assistant Public Defender was appointed to defend a Clarence Cyra on a charge of passing forged checks. Cyra had previously, and when arrested, given a statement to the police which implicated appellant in the forgery of the checks. On September 12, 1978, appellant was charged with the two counts of forgery which ultimately led to the conviction from which this appeal is taken. On the same date, September 12, 1978, Assistant Public Defender, who was already representing appellant on the unrelated charge, was appointed to represent him on the forgery charges.

On September 21, 1978, a plea bargain was arranged between Cyra and the State, with approval of Assistant Public Defender, whereby Cyra agreed to testify against appellant in return for the dismissal of charges against him. On the next day, Assistant Public Defender requested, and was granted, removal from representation of appellant on the forgery charges. ¹ The record is not clear as to just when Assistant Public Defender first learned that he had been assigned to defend appellant on the " * * * I may have received notice on that day (September 12, 1978), but there is normally a day or two before I get official notice. September 14th through September 17th I was in Jackson Hole attending a continuing legal education seminar. I returned to work on the 18th and I had a trial on Arthur Chris Beane the 18th and 19th of September."

forgery charges, but it contains no indication that he knew of the appointment until the time that plea bargaining was approved. He testified:

Assistant Public Defender did not contact appellant or discuss the forgery charges with him during the period of time between the appointment on September 12, 1978 and the withdrawal on September 22, 1978.

On September 26, 1978, Tom Toner, appellant's present counsel, was appointed to represent and defend him. Mr. Toner represented appellant at the preliminary hearing and at all times subsequent thereto. There is no contention or indication that the representation of appellant by Toner was not adequate or that the assistance afforded appellant by him was not effective.

At the trial and prior to the opening statements, the trial court denied appellant's motion for dismissal, which motion was grounded on a denial of effective assistance of counsel and due process of law because of the involvement of Assistant Public Defender.

The law is not harmonious among the various jurisdictions on some of the questions which arise from representation by one attorney of multiple defendants in a criminal action. Some of the divergence arises from the potential dilemma between the recognition that

" * * * Joint representation is a means of insurance against reciprocal recrimination. A common defense often gives strength against a common attack. * * * " Dissent of Chief Justice Stone and Justice Frankfurter in Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 475, 86 L.Ed. 680, reh. den. in Kretske v. United States, 315 U.S. 827, 62 S.Ct. 629, 86 L.Ed. 1222, and in Roth v. United States, 315 U.S. 827, 62 S.Ct. 637, 86 L.Ed. 1222 (1942),

and the conflict of interest which arises when the application of all of the skill and experience of the attorney to the benefit of one of the defendants represented by him will of necessity work to the detriment of the other defendant represented by him. The area of plea bargaining is one in which the conflict of interest aspect is an obvious problem.

Although "there is no constitutional right to plea bargain," Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977),

" * * * Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing. For example, in this case it may well have precluded defense counsel for Campbell from exploring possible plea negotiations and the possibility of an agreement to testify for the prosecution, provided a lesser charge or a favorable sentencing recommendation would be acceptable. * * *

" * * * in a case of joint representation of conflicting interests the evil it bears repeating is in what the advocate finds himself compelled to Refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. * * * " Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 1181, 1182, 55 L.Ed.2d 426 (1978).

There is no disagreement among the authorities that a defendant is entitled to effective assistance of counsel. Such is guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Adger v. State, Wyo., 584 P.2d 1056 (1978). Article 1, §§ 6 and 10 of the Wyoming Constitution does likewise, and the legislature has provided for appointment of counsel for indigent defendants. Sections 7-1-107, et seq. and § 7-9-105, W.S.1977. Rule 6(a), W.R.Cr.P., provides:

"(a) * * * Every defendant who is unable to obtain counsel shall be entitled The United States Supreme Court has emphasized that the assistance of counsel is such a basic right that the lack of such assistance "can never be treated as harmless error" Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978) quoting from Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); and "(t)he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942).

to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the commissioner or the court through appeal, unless he waives such appointment."

The specific holding in Holloway v. Arkansas, supra, the latest case in which the Supreme Court of the United States addressed the issue of joint representation, was to the effect that a defendant is denied the fundamental right of effective assistance of counsel when the trial court Requires joint representation of defendants over timely objections, and prejudice is then presumed and need not be independently shown, 98 S.Ct. at 1179. In its discussion of the issue, the court noted that it was not resolving the following two questions to which it referred in 98 S.Ct. at 1178:

"Since Glasser was decided, however, the courts have taken divergent approaches to two issues commonly raised in challenges to joint representation where unlike this case trial counsel did nothing to advise the trial court of the actuality or possibility of a conflict between his several clients' interests. First, appellate courts have differed on how strong a showing of conflict must be made, or how certain the reviewing court must be that the asserted conflict existed, before it will conclude that the defendants were deprived of their right to the effective assistance of counsel. Compare United States ex rel. Hart v. Davenport, 478 F.2d 203 (CA3 1973); Lollar v. United States, 126 U.S.App.D.C. 200, 376 F.2d 243 (1967); People v. Chacon, 69 Cal.2d 765, 73 Cal.Rptr. 10, 447 P.2d 106 (1968); and State v. Kennedy, 8 Wash.App. 633, 508 P.2d 1386 (1973), with United States v. Lovano, 420 F.2d 769, 773 (CA2 1970); see also cases collected at Annot., 34 A.L.R.3d 470, 477-507 (1970). Second, cour...