People v. Shari

• Decision Date: 30 March 2009
• Docket Number: No. 08SA383.,08SA383.
• Citation: 204 P.3d 453
• Parties: In re the PEOPLE of the State of Colorado, Plaintiff. v. Rodricke SHARI, Defendant.
• Court: Colorado Supreme Court

204 P.3d 453

In re the PEOPLE of the State of Colorado, Plaintiff. v. Rodricke SHARI, Defendant.

No. 08SA383.

Supreme Court of Colorado, En Banc.

March 30, 2009.

Scott W. Storey, District Attorney, First Judicial District, Donna Skinner Reed, Chief Deputy District Attorney, Golden, Colorado, Attorneys for Plaintiff.

Douglas Wilson, Colorado State Public Defender, Frances Smylie Brown, Chief Deputy Public Defender, Denver, Colorado Attorneys for Defendant.

Samler & Whitson, P.C., Hollis A. Whitson, Denver, Colorado, Attorneys for Alternate Defense Counsel.

Justice RICE delivered the Opinion of the Court.

This original proceeding arises out of the People's motion for conflict-free counsel seeking to disqualify the defendant's public defenders from continuing to represent him. The People allege that the prior representation of three of their witnesses by attorneys within the Office of the State Public Defender creates a conflict warranting disqualification of the entire Public Defender's Office and the appointment of Alternate Defense Counsel. The defendant and the Office of Alternate Defense Counsel counter that no such conflict exists because neither individual attorney involved in this case participated in the prior representation of witnesses.

We issued a rule to show cause, and we now make that rule absolute, holding that the trial court abused its discretion by disqualifying the entire Office of the State Public Defender from this case.

I. Facts & Procedural History

The defendant, Rodricke Shari, was charged with three counts of first degree murder, three counts of crimes of violence, two counts of first degree burglary, and one count of aggravated robbery after allegations that he caused the death of a woman during the course of a burglary and robbery between May 1, 2008 and May 2, 2008. Shari was represented by two public defenders out of the Golden branch of the Office of the State Public Defender—Rex Hegyi and Daniel G. Katz.

A preliminary hearing was set for October 8, 2008. However, the People filed a motion for conflict-free counsel, alleging that Hegyi and Katz should not be permitted to represent Shari. Defense counsel filed a response, and the October 8 hearing was limited to that issue.

The People alleged that the entire Office of the State Public Defender, including Hegyi and Katz, should be disqualified from representing Shari in this case because of the Office's prior representation of the People's three primary witnesses against Shari. The trial court recognized that neither Hegyi nor Katz was individually involved in any of the three witnesses' cases. However, because other attorneys within the Public Defender's Office had represented the witnesses, the trial court disqualified Hegyi and Katz from representing Shari and appointed alternate defense counsel.

The alleged conflict arose out of the Public Defender's Office's prior representation of three witnesses for the People—Lee Jackson, Cheriece Knox, and Brian Levy. Jackson had been Shari's cellmate after Shari was arrested in this case, and Jackson relayed the contents of a conversation he had with Shari to the prosecution. Shari allegedly told Jackson that he was angry with the victim because she was dating other men and had not satisfied a drug debt she owed him. Shari also allegedly stated that he followed the victim home and killed her with a knife and then stole money from her residence.

Knox and Levy told prosecutors that they saw Shari at around 1:30 a.m. on May 2, 2008, when they were walking along Colfax Avenue in Lakewood. Shari drove up to them and asked Levy to help him obtain some crack cocaine. The two witnesses said Shari had scratches on his face and a large cut on his hand. They got him some cocaine and took him to a hotel to clean up. They had to go to several different hotels because Shari did not want to go anywhere he might be recorded on a video camera. He told them that the police were after him and that he thought he had "killed a dude." Knox said Shari had black gloves in his car.

Jackson was represented by the State Public Defender's Office in five previous cases between 2000 and 2002. All five cases were prosecuted in Jefferson County, and attorneys at the Golden office of the Public Defender worked on each case. Some of those attorneys are still with the Golden office, some have relocated to other offices of the Public Defender, and some are no longer working as public defenders.

Knox was represented by the State Public Defender's Office in three cases between 2000 and 2003. No attorney employed in the Golden office was involved in any of those cases.

Levy was represented by the State Public Defender's Office in eight cases between 1995 and 2008. Four of the cases were prosecuted in Arapahoe County, and four were prosecuted in Denver County. Seven of the eight cases were closed at the time of the trial court's order disqualifying Hegyi and Katz. The eighth case was filed on July 29, 2008 in Denver—two months after Shari was arrested and three months before the hearing on the motion for conflict-free counsel. An attorney from the Denver office of the Public Defender appeared with Levy in the Denver drug court on July 31, 2008. Levy was sentenced to two years of drug court probation. He later failed to appear for a review hearing and was subsequently arrested. No public defender entered any further appearances on Levy's behalf after the July 31 probation sentence was entered, and a formal motion to withdraw was filed on October 9, 2008.

The Public Defender's Office enforces an extensive conflict of interest policy.¹ Pursuant to the policy, no information relating to the representation of a client may be transferred between regional offices, though confidential information is sometimes shared among attorneys within the same regional office when necessary to prepare a client's case.

As a result, the policy includes provisions requiring withdrawal where attorneys within the same regional office are currently representing both a defendant and a witness against that defendant. Where a defendant is being represented by an attorney within one regional office, and a witness against that defendant is a current client of another regional office, withdrawal is only required where there is a significant risk that representation will be materially limited.

The policy also notes that a conflict may exist where a witness against a defendant being represented by a public defender was formerly a client of the Public Defender's Office. In these cases, the policy only permits the use of impeachment material that can be gained "from sources independent of any confidential communications of the former client." The policy prohibits access "to inspect closed file(s) of a client who is now a victim or prosecution witness."

The trial court, finding a conflict of interest imputed to the entire Public Defender's Office, disqualified all attorneys employed by the Office, including Hegyi and Katz, and appointed Alternate Defense Counsel. Alternate Defense Counsel petitioned this court for relief pursuant to C.A.R. 21.

II. Standard of Review

The decision to disqualify counsel generally lies within the broad discretion of the trial court. People v. Harlan, 54 P.3d 871, 877 (Colo.2002). We review a disqualification order for abuse of discretion. Id.; see also § 21-2-103, C.R.S. (2008) (giving trial court discretion to appoint Alternate Defense Counsel where public defender has a conflict of interest).

III. Conflict of Interest Rules

An attorney can be disqualified on the basis of a conflict of interest in two distinct ways. First, the attorney may have a direct conflict that prohibits continued representation. Second, the attorney may be associated with another conflicted attorney, and that conflict may be imputed to all associated attorneys. We discuss each in turn, and conclude that no conflict, direct or imputed, existed in this case to disqualify Hegyi and Katz from representing Shari.

A. Direct Conflicts of Interest

The Sixth Amendment's guarantee of effective assistance of counsel encompasses a defendant's right to conflict-free counsel. People v. Martinez, 869 P.2d 519, 524 (Colo. 1994) (citing Holloway v. Arkansas, 435 U.S. 475, 483-84, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). A defendant's Sixth Amendment rights "can therefore be violated by `representation that is intrinsically improper due to a conflict of interest.'" Dunlap v. People, 173 P.3d 1054, 1070 (Colo.2007) (quoting People v. Castro, 657 P.2d 932, 943 (Colo.1983)). While judges must be cognizant of potential conflicts when appointing counsel to indigent defendants, the mere "possibility of a conflict is insufficient" to establish a Sixth Amendment violation. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

An attorney's duties to current and former clients are governed by the Colorado Rules of Professional Conduct. Rule 1.7 outlines the duties owed by an attorney to current clients.² In order for a Rule 1.7 conflict to exist, the same attorney must represent two clients with adverse interests, or the attorney's representation of one client must create a significant risk of materially limiting the representation of the other client. Colo. RPC 1.7.

Similarly, Rule 1.9 explains a lawyer's duties to former clients.³ A lawyer who has represented a client may not later represent another client in a substantially related matter where the new client's interests are materially adverse to the former client's interests without getting informed consent from the former client. Colo. RPC 1.9. In addition, without getting the former client's informed consent, a lawyer associated with a firm that formerly represented a client may not later represent a new client with interests materially adverse to the former client if the lawyer acquired material, confidential information from the former client. Id.

In the event that a public...