People v. Czemerynski

Decision Date12 February 1990
Docket NumberNo. 88SA280,88SA280
Citation786 P.2d 1100
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Charles John CZEMERYNSKI, Defendant-Appellant.
CourtColorado Supreme Court

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., and Guy Till, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Ralph Ogden, Wilcox and Ogden, Denver, for defendant-appellant.

Justice MULLARKEY delivered the Opinion of the Court.

This is an appeal from the Larimer County District Court's conviction of Charles Czemerynski for criminal extortion and harassment under sections 18-3-207(1) and 18-9-111, 8B C.R.S. (1986). Because Czemerynski raised several constitutional issues, the case was transferred to this court from the court of appeals. § 13-4-102(1)(b), 6A C.R.S. (1987). We affirm Czemerynski's convictions.


Czemerynski was convicted of harassment and criminal extortion based on alleged threatening phone calls made to Rhonda Camerrer between April 1, 1984 and July 31, 1984. He received concurrent sentences of six years on the extortion conviction and six months on the harassment conviction.

In February of 1984, members of the Camerrer family began receiving hundreds of anonymous obscene 1 telephone calls which continued until December of 1985. The calls were mostly for the Camerrers' daughter, Rhonda, and came several times a day, "seven days a week." Kerry Jean Camerrer, Rhonda's mother, was convinced that it was the same voice every time. The caller usually requested that Rhonda "talk dirty" to him, and he often said "if you don't help me, I'm around the corner and I know where you live, and I'm going to come and get you." Occasionally the caller identified himself as John Robinson.

On April 10, 1985 a call was made to the Camerrer residence during which the caller identified himself as Chuck Czemerynski and said that he was calling from the prison at Canon City, that he wanted to get to know Rhonda, and that he would write her a letter. He also admitted that he was "the one that's been making the phone calls."

A letter addressed to Rhonda was received a few days later which was signed "Chuck Czemerynski." Neither the April 10 call nor the letter was obscene in any way. Afterwards, the calls became less frequent although the same vague threats to "get" Rhonda were made.

Another witness, Beverly Swenson, was allowed to testify over defense objection. Swenson had met Czemerynski at least once and had talked with him several times between April 1, 1984 and July 31, 1984, when he came to her home to call for her daughter. After her daughter and Czemerynski had a disagreement, the Swensons began receiving hundreds of obscene phone calls. The caller used graphic sexual language and wanted the daughter to "talk dirty" to him. Furthermore, the caller often said that he was watching every move they made and that if they didn't do what he said, he would rape and kill them. On one occasion, the caller identified himself as "Johnny Robbins" but never identified himself in any other way. Swenson suspected that the caller was Czemerynski, and one time she gave the phone to her daughter who said "That's Chuck. Just hang up."

At trial, Swenson was allowed to testify that her daughter had identified the obscene caller as Charles Czemerynski. Also, Swenson was allowed to testify about a series of obscene and threatening phone calls allegedly made by the defendant. The testimony concerning these calls was offered to help identify the defendant as the person who called the Camerrers by showing an allegedly common plan, scheme, design, and intent.


Czemerynski claims that he was denied his Sixth Amendment right to conflict-free representation by trial counsel. Czemerynski was represented at trial by State Deputy Public Defenders Joseph Gavaldon and Lee Medina. Medina, who previously had represented Czemerynski on other felony charges in 1984, was not involved in the preparation for trial but was asked to assist Gavaldon at the trial. On the first day of trial, Medina examined the list of prospective witnesses and suspected that he previously had represented Beverly Swenson, an endorsed prosecution witness, in an unrelated criminal matter. A review of the Public Defender's files revealed that Medina represented Swenson on a felony theft charge in 1984. Swenson pled guilty to the charge and received a deferred sentence for a period of two years. At the time of this trial, the deferral period had not expired.

After determining that Medina had represented Swenson, Gavaldon and Medina disclosed that fact to the defendant, the prosecution and the court:

MR. GAVALDON: We have determined that this particular witness has been represented by our office, and in fact Mr. Medina, after yesterday when we were talking about this particular case, the name was somewhat familiar, so we asked our investigator to check if in fact--and we checked with the Court records in the District Court records, and it does appear that Mr. Medina represented [Mrs.] Swenson with regard to a matter totally unrelated to this case obviously, but involving a disposition whereby the District Attorney and our office, along with [Mrs.] Swenson, entered into a deferred sentence on a felony.

Gavaldon added that "we are not asking to be removed from this case whatsoever."

The record discloses that both the prosecutor and the defense counsel recognized that an actual conflict of interest would be created by the Public Defender's continued representation of the defendant because the Public Defender would be required to cross-examine a former client who was a key prosecution witness. The court attempted to minimize the conflict by prohibiting Medina from assisting Gavaldon in Swenson's cross-examination and by prohibiting Medina from disclosing any information about Swenson which was not a matter of public record. 2

Absent the conflict of interest, the Public Defender would not have been so restricted in developing the cross-examination of Swenson. Defense counsel would have been free to attempt to impeach Swenson with any and all relevant information including her prior criminal record and other matters affecting her credibility. The extent to which the defense's cross-examination of Swenson actually was impaired is known only to Medina, Swenson's former attorney, who was precluded from disclosing such information to anyone.

In this case, however, the defendant waived his right to conflict-free representation. The district attorney asked the trial judge to advise the defendant of the potential conflict of interest and to determine whether he waived his right to conflict-free representation. Czemerynski had been present throughout the discussion between counsel and the trial court regarding the potential conflict of interest. The judge explained to the defendant that Medina previously had represented a potential witness on a different legal matter and he described the proposed procedure for cross-examining Swenson. In response to the court's questioning, Czemerynski stated that he understood the previous discussion between the court and counsel and the proposed procedure. The court then asked Czemerynski if he wanted Gavaldon and Medina to continue representing him and he responded affirmatively. The judge also asked Czemerynski if he had any questions or needed more time to talk with his attorneys. Czemerynski had no questions for the court and indicated that he did not need to discuss the matter further with his attorneys.

The case proceeded to trial and at no time did Czemerynski object to his representation by the two Public Defenders. Swenson testified and her cross-examination followed the procedure ordered by the court with Gavaldon cross-examining her while Medina remained seated at the defense counsel table. From the record, Gavaldon's cross-examination appears adequate. He brought out Swenson's felony conviction as a result of her guilty plea and Czemerynski does not argue that Gavaldon should have pursued any other line of questioning to impeach Swenson's testimony.

Although Czemerynski concedes that generally a defendant may waive his right to conflict-free representation, he argues that public policy should prohibit the cross-examination of Swenson by her former attorney, the Public Defender. In Rodriguez v. District Court, 719 P.2d 699 (Colo.1986), we recognized a defendant's right to waive conflict-free representation by the Public Defender where the Public Defender previously had represented a key prosecution witness. Different deputy public defenders simultaneously represented the defendant Rodriguez and the witness in different cases until the Public Defender withdrew from representing the witness after she indicated her intent to testify against Rodriguez. In concluding that Rodriguez could waive the conflict, we noted that the witness did not object to the Public Defender's representation of Rodriguez and that it appeared that the conflict of interest would be "of relatively minor significance at trial" because the witness could be impeached with sources entirely independent of any confidential communications which she had made. Id. at 707. We concluded that "the public's interest in ensuring that potential witnesses may freely communicate with counsel secure in the knowledge that privileged matter cannot subsequently be revealed is protected by the fact that the [trial court] can monitor the interrogation of [the prosecution witness] at trial and by the fact that much of the information obtained by the Public Defender to aid in the cross-examination of [the prosecution witness] may not be privileged." Id. at 708.

Many of the same considerations are present here and served to protect Swenson. In addition, the case for waiver is stronger because the Public Defender's representation of Swenson occurred in...

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