State v. Belcher, 1980
| Decision Date | 15 July 1970 |
| Docket Number | No. 1980,1980 |
| Citation | 472 P.2d 39,106 Ariz. 170 |
| Parties | STATE of Arizona, Appellee, v. Joe BELCHER, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.
Cunningham, Tiffany, Weltsch, Hurley & Scott, by Michael E. Hurley, Phoenix, for appellant.
This is a delayed appeal from appellant's conviction in 1968 of the crime of robbery. The single issue presented is whether, because of his counsel's conflict of interest, the appellant was denied effective assistance of counsel, guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution.
Appellant was arrested in 1967 along with three other individuals, Billy Joe Thompson, Clifton Williams and Leslie Hollingsworth. All four were charged with having committed a robbery of a liquor store in Phoenix. The same deputy public defender was appointed to represent all four individuals. Separate trials were held.
At the time appellant came to trial, on February 5, 1968, two of the four defendants had been convicted of the robbery. Appellant was the third to come to trial. The record indicates that one of the defendants had pleaded guilty to the charge and that a second had been found guilty after a jury trial. The fourth defendant, Leslie Hollingsworth, had not yet come to trial. When appellant's case was called, appellant himself, outside the presence of the jury, requested the trial court to appoint other counsel. Appellant stated that he wished to subpoena the three other defendants but that his appointed counsel refused to subpoena one of these defendants, Hollingsworth. Appellant's counsel then informed the court that he was also representing Hollingsworth and that Hollingsworth had not yet come to trial. Counsel explained that as Hollingsworth's attorney he would have to advise him not to testify on the ground that testimony at appellant's trial might tend to incriminate Hollingsworth. Counsel further indicated that he believed there might be a conflict of interest problem and laid the matter in the hands of the trial court.
The trial court stated that appellant's request for a change of counsel was denied at that time, pending later developments during the trial. The case was thereafter tried. Hollingsworth was not called to testify. The other two defendants, already convicted, testified in appellant's favor. Appellant continued to be represented by the same counsel and was convicted after a jury verdict of guilty.
The above stated facts show clearly that counsel representing the appellant was not able to call to the stand and question a witness, desired by the appellant, because to do so would conflict with counsel's representation of that witness. We therefore must agree with appellant's contention that a conflict of interest existed which requires the reversal of his conviction. As this court emphasized in State v. Kruchten, 101 Ariz. 186, 417 P.2d 510, cert. denied 385 U.S. 1043, 87 S.Ct. 784, 17 L.Ed.2d 687 (1966), a lawyer may represent codefendants until a conflict arises or can reasonably be foreseen. At that point independent legal advice must be provided for one or the other. 1 See also Kruchten v. Eyman, D.C., 276 F.Supp. 858, aff'd 406 F.2d 304 (9 Cir., 1967).
The state urges that there was no actual conflict here because there was no harm to the appellant caused by Hollingsworth's failure to testify. The state suggests that appellant's counsel may have determined that Hollingsworth's testimony would not aid appellant's case. We believe that the state's argument is simply speculation upon the degree of prejudice inflicted because of counsel's conflict of interest. The essential point is that appellant's counsel, because of his conflict in representation, was not able to call the codefendant as requested by appellant himself.
It is by now well established that if a conflict of interest exists, courts will not speculate...
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State v. Taylor
...attorney in a personal legal action. The trial judge denied the motion, and we find no abuse of discretion here. State v. Belcher, 106 Ariz. 170, 472 P.2d 39 (1970), cited by appellant, does not support his position because of the great difference in the It is interesting to note that appel......
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State v. Duffy, 2 CA-CR 2018-0071
...Ariz. 144, 145, 506 P.2d 1038, 1039 (1973) ; State v. Bush , 108 Ariz. 148, 150, 493 P.2d 1205, 1207 (1972) ; State v. Belcher , 106 Ariz. 170, 170, 172, 472 P.2d 39, 39, 41 (1970). ¶15 Thus, the rule articulated in Spreitz applies only to claims of counsel incompetency. In State v. Jenkins......
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People v. Miller
...assistance of counsel, but we do not find them to be in point. Austin v. Erickson (8th Cir. 1973), 477 F.2d 620, and State v. Belcher (1970), 106 Ariz. 170, 472 P.2d 39, involved representation of codefendants by only one member of a public defender's office rather than two as is the case h......
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Rodriguez v. State
...to require Foreman to withdraw because of Rule 29(a), DR 5-105(D), would not be consistent with our decision in State v. Belcher, 106 Ariz. 170, 472 P.2d 39 (1970). There, we reversed a conviction when the appellant's counsel also represented a codefendant who was to be tried separately. Th......