People v. Deutsch

• Citation: 471 P.3d 1266
• Decision Date: 23 July 2020
• Docket Number: Court of Appeals No. 18CA2055
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Keith Edwin DEUTSCH, Defendant-Appellant.
• Court: Court of Appeals of Colorado

471 P.3d 1266

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Keith Edwin DEUTSCH, Defendant-Appellant.

Court of Appeals No. 18CA2055

Colorado Court of Appeals, Division II.

Announced July 23, 2020

Philip J. Weiser, Attorney General, Jillian J. Price, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Sarah Spears, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUSTICE MARTINEZ^*

¶ 1 Defendant, Keith Edwin Deutsch, appeals the judgment of conviction entered on jury verdicts finding him guilty of criminal extortion and violation of a custody order. We affirm in part and vacate in part.

I. Background

¶ 2 Deutsch and his ex-wife, Alicia O'Sullivan, share custody of their daughter according to the terms specified in a court custody order. Deutsch and O'Sullivan talk about their daughter primarily through Talking Parents, an e-messaging system that keeps a record of communications to support co-parenting.

¶ 3 On September 8, 2017, O'Sullivan went to pick up her daughter from daycare and discovered that Deutsch had already picked her up. O'Sullivan contacted Deutsch via Talking Parents and informed him that this was not his parenting time and he needed to return their daughter to her. When Deutsch refused, O'Sullivan called the police. After a deputy arrived, O'Sullivan spoke with Deutsch on speakerphone. Deutsch threatened that he would not return their daughter until O'Sullivan paid him $1988, gave him additional parenting time, and allowed their daughter to take a vacation with him during her parenting time. O'Sullivan told him that she "would give him whatever he wanted if he would just bring her back." Deutsch then brought their daughter to a park near O'Sullivan's house.

¶ 4 Deutsch was arrested and charged with criminal extortion (threat of economic harm) and violation of a custody order. Following a jury trial, he was found guilty as charged and sentenced to two years of probation on each count, to be served concurrently.

II. Deutsch's Right to a Fair Trial and Conflict-Free Counsel Was Not Violated

¶ 5 Deutsch first contends that the court presiding over the conflict hearing violated his right to a fair trial and conflict-free counsel by failing to advise him of his rights and the risks associated with waiving conflict-free representation. We disagree.

A. Additional Background

¶ 6 On the morning of trial, defense counsel moved to withdraw because of a conflict of interest between him and his client. A conflict hearing was held before another judge.

¶ 7 Defense counsel told the conflict court that, on more than one occasion during trial preparations, Deutsch had become verbally abusive and screamed at him, using threatening, obscenity-laced language. At one point, defense counsel stated that he threatened to dial 911 unless Deutsch ceased his behavior. The morning of trial, defense counsel spoke with Deutsch outside of the courtroom and advised him that he "could very well have a conflict with him, and would not be able to represent him." Deutsch blocked his entrance to the courtroom, "became very upset," looked "as if he was going to head-butt [him]," and "grabbed [him] physically." Defense counsel told the conflict court that he felt threatened and that "the relationship has devolved to the point that I cannot represent him."

¶ 8 When the conflict court asked Deutsch whether he agreed with his defense counsel's description of what happened, Deutsch responded that "[e]verything he said is a lie," his attorney showed up unprepared for trial, and he wanted to avoid another continuance. He also explained this was his third attorney because the first attorney was not prepared for trial and there was a payment issue with the second attorney. When the conflict court asked Deutsch whether he wanted the court to continue the trial, Deutsch responded, "No, please, not." At one point, the conflict court asked Deutsch whether he could make peace with his attorney and go to trial that day. Deutsch replied that he was "perfectly fine going to trial. I see why he's not, because he has no idea – he's never even read the discovery. But I'm ready."

¶ 9 Deutsch also told the conflict court, "I do need continuance. I need a competent attorney." Ultimately, the conflict court confronted Deutsch with the ambivalence he had expressed and directly asked him, "Are you asking me to give you a continuance so you can hire a different lawyer?" Deutsch said he did not want to continue the trial and repeated that response when the court asked again. Deutsch also said, in response to the court's questions, that he did not want to represent himself and that he wanted his current attorney to represent him at trial.

¶ 10 The court also asked defense counsel whether he thought he could "get along with [Deutsch] well enough to represent him at a one-day trial." He responded that he did not think so: "I just feel that it is – there is no relationship, attorney/client, that remains." He later elaborated that his concerns are "for me, and I simply do not feel safe working with Mr. Deutsch anymore."

¶ 11 The conflict court denied the motion to withdraw, finding,

I just think that if I were to grant this request to withdraw, that we'd be right back in the same situation a month or two hence. And given what Mr. Deutsch has told me, I think that this is one of those matters, [counsel], where you're just going to have to do the best you can with Mr. Deutsch, and if things get worse, then I get [sic] guess we can all come back here. I'll be here all day. You'll need to let me know.

But as for right now, [counsel's] request to withdraw from the case will be denied for the reasons I've stated, and gentlemen, you'll need to go back to [the trial court], and we'll bring the jury up.

¶ 12 The trial then proceeded as scheduled and defense counsel did not renew his motion to withdraw.

B. Standard of Review

¶ 13 We review de novo whether an actual conflict of interest existed. People v. Hagos , 250 P.3d 596, 613 (Colo. App. 2009).

C. Applicable Law

¶ 14 A defendant has a constitutional right to conflict-free counsel. U.S. Const. amend. VI ; Colo. Const. art. II, § 16 ; People v. Ragusa , 220 P.3d 1002, 1006 (Colo. App. 2009). This is considered essential to a fair trial. People v. Arguello , 772 P.2d 87, 92 (Colo. 1989). A conflict of interest exists when an attorney's ability to represent a client is materially limited by the attorney's own interests. People v. Edebohls , 944 P.2d 552, 556 (Colo. App. 1996). Although a defendant is entitled to conflict-free counsel, the defendant may waive this right. People v. Harlan , 54 P.3d 871, 879 (Colo. 2002).

¶ 15 "Once a trial court is put on notice of a potential conflict of interest between the defendant and defense counsel, it has a duty to inquire into the propriety of continued representation by counsel." Hagos , 250 P.3d at 613 (citation omitted). However, a trial court's failure to inquire into a potential conflict is not automatic grounds for reversal. See Mickens v. Taylor , 535 U.S. 162, 174, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). To obtain reversal, the defendant must show that defense counsel was subject to an actual conflict of interest. Hagos , 250 P.3d at 613-14.

¶ 16 "An actual conflict of interest is one that is real and substantial, and adversely affects counsel's performance, while a potential conflict of interest is one that is possible or nascent, and in all probability will arise." People v. Curren , 228 P.3d 253, 258 (Colo. App. 2009).

D. Analysis

¶ 17 The People concede that the conflict court did not advise Deutsch of his right to conflict-free counsel. Nevertheless, because there was no actual conflict, the People argue that "any deficiencies in the conflict court's advisement are moot." We agree.

¶ 18 Deutsch argues that the actual conflict of interest here is similar to that in Edebohls , 944 P.2d 552. But, in Edebohls , defense counsel had pending criminal charges in the same court. Id. at 554. Defense counsel's personal interest in the outcome of the case against him before the same court was an actual conflict of interest. Id. Here, even though the conflict court told Deutsch and his attorney "if things get worse ... we can all come back here," neither returned to the conflict court. Deutsch argues that, because his attorney was uncomfortable being in the same room with him, this fear "may well have factored into [his attorney's] trial strategy, pretrial advice, and likely negatively impacted his ability to prepare for trial." While fear of a client could be an actual conflict of interest, from the record before us we cannot determine whether fear actually affected the attorney's ability to represent Deutsch. Deutsch also argues that communication with his attorney was "irreparably dysfunctional." But an actual conflict of interest requires "more than a theoretical conflict." People v. Garner , 2015 COA 174, ¶ 55, 381 P.3d 320 (citation omitted). Thus, animosity does not constitute an actual conflict. People v. Hodges , 134 P.3d 419, 425 (Colo. App. 2005), aff'd on other grounds , 158 P.3d 922 (Colo. 2007). On this record we cannot determine the nature of communications between Deutsch and his attorney after the conflict court urged them to keep trying. We will not presume that the attorney-client relationship deteriorated such that the potential conflict of interest became an actual conflict of interest.

¶ 19 Accordingly, Deutsch fails to demonstrate a conflict of interest that adversely affected his attorney's performance. Although Deutsch is correct that courts "need not attempt to calculate the amount of prejudice attributable to the conflict," Edebohls , 944 P.2d at 559, this is a distinct inquiry from determining whether "an actual conflict of interest affected the quality of representation conclusively establish[ing] a constitutional violation requiring reversal." People v....