State v. Alvarado, 021821 IDSCCR, 47341

Docket Nº47341
Opinion JudgeMOELLER, JUSTICE.
Party NameSTATE OF IDAHO, Plaintiff-Respondent, v. ALFREDO ALVARADO, Defendant-Appellant.
AttorneyEric D. Fredericksen, State Appellate Public Defender, Boise, for Appellant. Jason Pintler argued. Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Jeff Nye argued.
Judge PanelChief Justice BEVAN and Justices BURDICK, BRODY and STEGNER CONCUR.
Case DateFebruary 18, 2021
CourtSupreme Court of Idaho

STATE OF IDAHO, Plaintiff-Respondent,

v.

ALFREDO ALVARADO, Defendant-Appellant.

No. 47341

Supreme Court of Idaho, Boise

February 18, 2021

Appeal from the District Court of the Fifth Judicial District of the State of Idaho, Twin Falls County. Roger B. Harris, District Judge.

The judgment of the district court is affirmed.

Eric D. Fredericksen, State Appellate Public Defender, Boise, for Appellant. Jason Pintler argued.

Lawrence G. Wasden, Idaho Attorney General, Boise, for Respondent. Jeff Nye argued.

MOELLER, JUSTICE.

In this appeal we are asked to clarify the meaning and extent of a defendant's Sixth Amendment right to conflict-free counsel. Appellant Alfredo Alvarado ("Alvarado") argues his rights were violated because his public defender had previously represented a witness who was adverse to him on a felony charge. After disclosing the conflict, Alvarado's attorney agreed that he and the public defender's office would decline any future representation of the witness. However, Alvarado argues that counsel continued to have an actual conflict of interest because his ongoing ethical duties to the witness and former client prevented him from effectively cross-examining the witness. Alvarado argues that this resulted in a structural defect in the trial, which necessitates overturning his convictions. In the alternative, Alvarado argues his unified aggregate sentence of twenty years to life for attempted strangulation and domestic abuse was excessive.

I.

FACTUAL AND PROCEDURAL BACKGROUND

On the night of July 13, 2018, the Twin Falls Police Department received a call to search for Tina Verret ("Verret"), who could not be found after she had left her home earlier that evening following an argument with her boyfriend, Alvarado. Officers eventually found Verret and Alvarado near a Lowe's Home Improvement store. Verret, who appeared to have been battered, told the officers Alvarado had tried to kill her. After law enforcement questioned both parties, Alvarado was arrested for domestic battery. He was later charged with three felonies-attempted strangulation, domestic battery, and intimidation of a witness-along with five misdemeanors concerning no-contact order violations and telephone harassment. Part II of the Information contained a persistent violator enhancement.

Verret's son, Garrett Peak ("Peak"), and his girlfriend, Kamille Davies ("Davies"), both witnessed the events that preceded the attack and observed Verret's injuries when she returned home. During the trial, the prosecution called Verret, Peak, and Davies to testify. Prior to the prosecution's direct examination of Peak, Alvarado's attorney, George Essma ("Essma") of the Twin Falls Public Defender's Office, notified the court that he had previously represented Peak on a felony possession of a controlled substance charge. Peak had pleaded guilty to that charge and had been placed on probation two months before Alvarado's trial. The Twin Falls Public Defender's Office was also representing Peak on pending misdemeanor charges for which he was presently in custody awaiting trial.

Essma explained that although the State had disclosed Peak on its witness list, he did not associate the name with his former client because the State had mistakenly listed Peak's address as the Twin Falls County Prosecutor's Office. Essma expressed concern that his prior relationship with Peak might create a conflict in his representation of Alvarado or future representation of Peak: I think in order for me to protect Mr. Peak's ability to be represented by fair and impartial counsel down the road, if that's what's going to happen-and I don't know-and for me to be able to proceed in this trial, I am going to have to-the Public-the Twin Falls Public Defender's Office is going to have to conflict any further activity on Mr. Peak's case to another attorney outside the main Public Defender's Office, I believe. So I just wanted to make a record of that.

The district court confirmed with Peak that he was currently in jail on misdemeanor charges and that he had not discussed those charges with Essma. The district court also observed that, given the misdemeanors, Peak might face probation violations in his felony case, and Essma would not be able to represent him. Peak agreed that Essma and the Twin Falls Public Defender's Office could withdraw from future representation of him. Essma and the prosecutor each indicated they were satisfied with the record made by the district court. Alvarado was present, seated next to Essma when this discussion took place; however, the district court did not ask Alvarado if he still approved of Essma continuing to represent him in his case.

On direct examination, Peak was called to testify about the events leading up to and following the attempted strangulation and domestic battery of Verret. Peak wore a jail-issued orange jumpsuit while in court. He testified that Alvarado was dating Verret and had recently moved in with her. Peak, Davies, and Davies' young son also lived in the house. On July 13, 2018, Peak overheard Verret and Alvarado arguing about "indecent gestures" Alvarado had been accused of making toward Davies. Peak confronted Alvarado and asked him to leave, but Alvarado only went as far as the front yard, where he banged on the door and window, challenging Peak to fight him. Peak went outside and pushed Alvarado, who fell backwards over a bicycle and landed in the street. Peak asked Alvarado if he wanted to continue fighting and Alvarado declined. Verret and Davies came outside and Alvarado insisted that Davies had offered to have sex with him in return for drugs. Verret asked Davies and Peak to go inside and calm down. Peak smoked a cigarette before returning to the front yard where he found Alvarado and his mother had gone. Peak went out searching for Verret but did not find her. When Verret returned home later that night, Peak testified that she was "scared, frantic, [and] pretty battered" and that she "was bleeding from her nose and lips," "had clumps of hair missing out of her head," "had bruises on her throat [and] shoulders," and torn clothes.

Before Essma cross-examined Peak, the prosecutor moved to prohibit Essma from asking Peak about why he was in custody because Peak did not have any convictions that were admissible under Idaho Rule of Evidence 609 for impeachment purposes, and he was currently in custody for alcohol use. Essma countered that, as a general matter, he should be allowed to ask questions about who the witness was, stating, "[i]t's not getting into character; it's just a matter of setting the stage for where we're at with the witness the State proffered." Essma claimed that other judges had allowed him to ask a witness generally about whether he was in custody for a criminal matter and the nature of the criminal matter, as well as whether any people involved in the present case were also involved in the witness's criminal case. The district court said it would review Idaho Rule of Evidence 609, and Essma reiterated that his inquiry did not relate to character, saying, "the jury sees a person coming in orange; I think they're entitled to have some basic questions answered. And they're relevant because I know why he's in jail."

Essma then pivoted and argued instead that the evidence was admissible under Idaho Rules of Evidence 401 and 403: Mr. Peak is alleged to have committed domestic violence in two misdemeanor cases against Kamille . . . Davies, the very person who had been-he has mentioned is a participant in the activity that he's testified to under oath. I think it's relevant for the jury to hear, 'Well, Mr. Peak, you've mentioned Kamille, but you yourself have committed a domestic battery against her; isn't that correct?' I think it's relevant.

The district court asked in what respect that information would be relevant, noting that it did not go to the witness's propensity for truthfulness. Essma answered that it was not a matter of truthfulness but was "probative," and that its probative value outweighed the risk of prejudice: Because he's on the stand testifying against my client as a witness to what he says is a domestic violence when he, in fact, is being accused of the same crime against one of the very people that were [sic] at the scene that have accused my client. And I think the jury could know, 'Gee, that's why he's in orange.' It's relevant, and it's more probative-why is it prejudicial? It's true. It's what happened. This is who the State put on. That's not my fault. When the district court explained that it still did not understand how the information was relevant, Essma continued to argue that it was relevant to the weight the jury would give Peak's testimony because "[p]erhaps a juror would say 'Look, well, yeah, he's trying to take Mr. Alvarado down. It will make him feel better.'" The district court sustained the objection to the line of questioning about why Peak was in custody.

Essma then moved to strike Peak's testimony, arguing that the State violated a pre-trial discovery order because it had failed to disclose Peak's criminal record and that he was in jail. The State averred that Essma and the Twin Falls Public Defender's Office had represented Peak and so they knew about his criminal record and his incarceration and also offered a continuance to let Essma review Peak's criminal record. The district court overruled Essma's objection to Peak's testimony because once again it found no reason why Peak's prior convictions would be relevant. Once the cross examination began, Essma did not question Peak about his past convictions or why he was in custody.

Davies' testimony was similar to Peak's. She testified that Alvarado had made sexual comments about...

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