People v. Edebohls, 94CA0911

• Decision Date: 29 November 1996
• Docket Number: No. 94CA0911,94CA0911
• Citation: 944 P.2d 552
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert EDEBOHLS, Defendant-Appellant. . I
• Court: Colorado Court of Appeals

Page 552

944 P.2d 552

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert EDEBOHLS, Defendant-Appellant.

No. 94CA0911.

Colorado Court of Appeals,

Div. I.

Nov. 29, 1996.

Rehearing Denied Feb. 20, 1997.

Certiorari Denied Oct. 20, 1997.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, M. Catherine Duba, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge METZGER.

Defendant, Robert Edebohls, appeals the judgment of conviction entered on a jury verdict finding him guilty of violating the Colorado Organized Crime Control Act (the Act), § 18-17-101, et seq., C.R.S. (1986 Repl.Vol. 8B). We reverse and remand with directions.

On December 18, 1992, defendant was charged in a multi-count indictment alleging that he violated the Act by participating in a large cocaine distribution network in Summit County. According to the indictment, defendant had been a leader in a criminal enterprise involving racketeering and the sale of controlled substances in Summit County.

Defendant retained private counsel (not the attorney representing him on appeal) to represent him at trial. In October 1993, defense counsel was charged with two counts of tampering with a witness and one count of bribery in a matter unrelated to defendant's case. Defense counsel told defendant of the charges pending against him.

On January 12, 1994, at defendant's request, defense counsel withdrew from representation. He then reentered his appearance as counsel on January 14, 1994. Attached to his notice of reentry was a letter which read: "Dear [attorney]; This letter is to have you represent me on Feb. 1st in Breckenridge. Sincerely, Bob Edebohls."

On February 1, 1994, the morning of trial, the trial court, having learned of the pending charges against defense counsel from a newspaper article, questioned him about the situation. The trial court verified that counsel had been charged, the nature of the charges, and the fact that they were pending in the same district. Thereafter, the trial court held an on the record discussion with defendant in chambers to determine if he wished to proceed with defense counsel or to have new counsel appointed. Neither defense counsel nor the prosecutor was allowed to attend. After this inquiry, the trial court determined that defendant had expressed his desire to proceed with defense counsel's representation.

Trial resulted in the conviction here at issue.

I.

Defendant contends that, because the indictment did not sufficiently allege a violation of the Act, the trial court lacked jurisdiction. Accordingly, he argues that his conviction cannot stand and that he cannot be retried. We disagree.

Grand jury indictments serve two purposes: to "give the defendant sufficient notice of the crime that has allegedly been committed so that a defense may be prepared" and to "define the acts which constitute the crime with sufficient definiteness so that the defendant may plead the resolution of the indictment as a bar to subsequent proceedings." People v. Buckallew, 848 P.2d 904, 909 (Colo.1993).

"Where a statute defines an offense in general terms, the indictment must allege the acts and conduct of the defendant which are deemed to have violated the statute." People v. Buckallew, supra, at 909. Merely reciting the statutory words is insufficient. People v. Tucker, 631 P.2d 162 (Colo.1981).

An indictment is not fatally insufficient if it adequately advises the defendant of the charges so he or she may defend against them. The sufficiency of the indictment is measured by substance, not form. People v. Bergen, 883 P.2d 532 (Colo.App.1994).

The Act was meant to eradicate organized crime in Colorado. Section 18-17-102, C.R.S. (1986 Repl.Vol. 8B). Section 18-17-104(3), C.R.S. (1986 Repl.Vol. 8B), states in pertinent part:

It is unlawful for any person employed by, or associated with, any enterprise to knowingly conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the collection of an unlawful debt.

Here, Count one of the 20-count Superseding Indictment stated in part:

On and between January 1, 1983 and December 18, 1992, in the counties of Summit, Lake, Clear Creek, and other counties ... Donald TUNICK conspired with ... Celia ROSS ... James TYLER ... Albert Neil PERRY, Richard FRYERS, Robert EDEBOHLS and others known and unknown ... who are persons associated with or employed by an enterprise, and did unlawfully, feloniously and knowingly acquire and maintain, directly or indirectly, interest in and control of such an enterprise and real property, and endeavored, to conduct and participate in, as well as receive proceeds derived from, a pattern of racketeering activity, by committing a violation of offenses relating to controlled substances (part 3 of article 22 of title 12, C.R.S. and article 18 of title 18, C.R.S.), and, further, used and invested proceeds from such racketeering activity in the acquisition of title to, right, interest, and equity in real property and in the establishment and operation of an enterprise contrary to 18-7-104(1)(a), (2), (3), (4) C.R.S. (1986 Repl.Vol.), against the peace and dignity of the People of the State of Colorado and further that the defendants manifested their conduct of and participation in the pattern of racketeering and conspiracy as follows:....

In addition to this language, Count 1 contained 36 paragraphs enumerating the facts of the alleged offenses in more detail. Although defendant was indicted for violating § 18-7-104(1)(a), 18-7-104(2), 18-7-104(3), and 18-7-104(4), C.R.S. (1986 Repl.Vol. 8B), the jury was instructed only as to § 18-7-104(3).

According to the indictment, defendant, along with Koch and others, was involved in Tunick's drug distribution enterprise. The indictment also alleges that defendant made arrangements with Koch to receive a portion of cocaine from a deal involving Koch and Tunick, at a discounted price, in order to pay off a debt that Koch owed defendant for personal and drug debts.

However, the indictment also states defendant did not receive the cocaine as planned, and Tunick stopped supplying him with cocaine. Consequently, in order to continue in his drug business, defendant was required to purchase cocaine from Hook and Fryers who were still purchasing cocaine from Tunick.

Consequently, because the indictment gives defendant notice of the crime he allegedly committed, and defines the acts which formed the basis for the crime with sufficient particularity, the indictment is legally sufficient to confer jurisdiction. See People v. Bergen, supra; see generally S. Briggs, "Amending Indictments in Colorado: Colo. R.Crim. P. 6.8," 6 Colo. Lawyer 765 (May 1977).

II.

Defendant next contends that the evidence was insufficient to support his conviction for violating the Act. We disagree and, thus, conclude that retrial of defendant is not barred.

When the sufficiency of the evidence is challenged on appeal, our task is to determine whether the evidence, when viewed as a whole, and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable person that the defendant is guilty beyond a reasonable doubt of the crimes charged. Kogan v. People, 756 P.2d 945 (Colo.1988); People v. Stafford, 890 P.2d 244 (Colo.App.1994).

Here, a leader in the drug enterprise testified in detail about several occasions when he had engaged in cocaine transactions with defendant. Evidence was presented that these transactions occurred in the context of the overall cocaine distribution "enterprise." Moreover, the amounts of cocaine allegedly bought and sold in these transactions tended to indicate that they were being purchased for the purpose of resale. This evidence, when viewed in the light most favorable to the prosecution, is substantial and sufficient to support defendant's conviction.

III.

Defendant contends that the trial court erred by interviewing him, in chambers, without the benefit of counsel, to determine whether he wished to retain his attorney or have a new attorney appointed to represent him. Defendant further contends that the interview resulted in an invalid waiver of conflict-free counsel, thus requiring the reversal of his conviction. Under the unique circumstances here, we agree.

The Sixth Amendment and Colo. Const. art. II, § 16, guarantee a defendant the right to effective assistance of counsel. People v. Castro, 657 P.2d 932 (Colo.1983). A defendant's right to effective assistance of counsel includes the right to conflict-free representation. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); People v. Martinez, 869 P.2d 519 (Colo.1994).

A.

Defendant first argues that, because criminal charges were pending against defense counsel, an actual conflict of interest existed. We agree.

In general, a conflict of interest exists when: (1) an attorney's representation of one client is directly adverse to another client, (2) when the attorney's ability to represent a client is materially limited by the attorney's responsibility to another client or to a third person, or by the attorney's own interests. See Rules of Professional Conduct 1.7(a) and (b).

A conflict of interest exists when defense counsel has been charged with a crime and is susceptible to prosecution, during the pendency of the representation of his or her client, by those responsible for the client's prosecution. See United States v. DeFalco, 644 F.2d 132 (3d Cir.1979)(finding conflict of interest as a matter of law when appellate defense counsel was indicted during pendency of appeal in the same district in which his client was being prosecuted); United States v. McLain, 823 F.2d 1457 (11th Cir.1987)(finding...