State v. Duffy, 110119 AZAPP2, 2 CA-CR 2018-0071

Docket Nº:2 CA-CR 2018-0071
Opinion Judge:ECKERSTROM, Judge
Party Name:The State of Arizona, Appellee, v. David Joseph Duffy, Appellant.
Attorney:Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Joshua C. Smith, Assistant Attorney General, Phoenix Counsel for Appellee Daniel J. DeRienzo, Prescott Valley Counsel for Appellant
Judge Panel:Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge EPPICH, Presiding Judge, specially concurring: BREARCLIFFE, Judge, concurring in part and dissenting in part and in the result:
Case Date:November 01, 2019
Court:Court of Appeals of Arizona
 
FREE EXCERPT

The State of Arizona, Appellee,

v.

David Joseph Duffy, Appellant.

No. 2 CA-CR 2018-0071

Court of Appeals of Arizona, Second Division

November 1, 2019

Appeal from the Superior Court in Cochise County No. CR201700136 The Honorable James Conlogue, Judge

Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Joshua C. Smith, Assistant Attorney General, Phoenix Counsel for Appellee

Daniel J. DeRienzo, Prescott Valley Counsel for Appellant

Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge

OPINION

ECKERSTROM, Judge

¶1 David Duffy appeals his convictions and sentences for conspiracy, transportation of marijuana for sale, and possession of drug paraphernalia. For the reasons that follow, we vacate and remand.

Facts and Procedural History

¶2 "We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts." State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999). In January 2017, a sergeant with the Arizona Department of Public Safety was monitoring traffic on a highway. He received a call from a Border Patrol agent, who had seen a green sports utility vehicle (SUV) driving suspiciously close behind another car. The sergeant then began watching for the vehicles the Border Patrol agent had described.

¶3 Shortly afterward, the sergeant saw two vehicles matching the agent's description: a green SUV following a red sedan at an unsafe distance in the right lane. He followed the SUV and paced it traveling approximately five miles per hour over the posted speed limit. He also observed the SUV make an abrupt lane change, cutting off another car that was traveling in the left lane, which was forced to change lanes to avoid a collision. Unbeknownst to the sergeant, the Border Patrol agent was driving that car. The agent had followed the SUV and pulled up near it to see if any suspicious people or bundles were visible in the back.

¶4 After the SUV made another abrupt lane change, the sergeant conducted a traffic stop based on the SUV's unsafe following distance, violation of the speed limit, and first abrupt lane change. He found Duffy in the driver's seat and Duffy's codefendant, Dora Matias, in the passenger seat. Once the driver's side window was open, the sergeant was able to see burlap-wrapped bundles through the tinted back windows of the SUV. Based on his experience, he suspected the bundles contained marijuana, and he placed Duffy and Matias under arrest. Later testing revealed the bundles contained over 240 pounds of marijuana.

¶5 A grand jury charged Duffy and Matias each with conspiracy, possession and transportation of marijuana for sale, and unlawful possession of drug paraphernalia. They stood trial together, represented by the same retained counsel, and the jury found them guilty on all counts. The trial court sentenced Duffy to three concurrent prison terms, the longest of which is six years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Joint Representation

¶6 Duffy contends the trial court erred in allowing the same attorney to represent both Duffy and his codefendant, Matias, during the trial despite the prosecutor's repeated warnings that this constituted a conflict of interest.1 The state counters that Duffy essentially describes a claim for ineffective assistance of counsel, which cannot be raised on direct appeal.

¶7 We review alleged violations of a defendant's Sixth Amendment right to counsel de novo. State v. Boggs, 218 Ariz. 325, ¶ 50 (2008). For the reasons that follow, we conclude that, to the extent Duffy claims the trial court erred in allowing joint representation during his trial, we may properly address that claim on appeal. We further conclude that the trial court, having been alerted to the potential conflict between Duffy and Matias, erred by failing to conduct an adequate inquiry into the propriety of joint representation in this case or the validity of Duffy's purported waiver of his constitutional right to conflict-free counsel. Finally, we conclude that Duffy has satisfied his burden of establishing that his trial counsel had an actual conflict of interest that adversely affected his representation of Duffy, requiring that his conviction be vacated and his case remanded for a new trial.[2]

Availability of Direct Appeal

¶8 The state is correct that, if Duffy believes particular decisions, acts, or omissions of his defense attorney at trial rendered his counsel ineffective, such a claim must be raised in a petition for post-conviction relief brought pursuant to Rule 32, Ariz. R. Crim. P., and may not be addressed by this court on direct appeal regardless of its merit. State v. Spreitz, 202 Ariz. 1, ¶ 9 (2002). However, this rule does not preclude Duffy from challenging on direct appeal the trial court's failure to discharge its duty to protect Duffy's constitutional right to conflict-free counsel.

¶9 As the United States Supreme Court has explained, a trial court's "duty of seeing that the trial is conducted with solicitude for the essential rights of the accused" includes the duty to "protect the right of an accused to have the assistance of counsel" during trial. Holloway v. Arkansas, 435 U.S. 475, 484 (1978) (quoting Glasser v. United States, 315 U.S. 60, 71 (1942)).3 That right-which is enshrined in the Sixth Amendment of the United States Constitution, article II, § 24 of the Arizona Constitution, and Rule 6.1, Ariz. R. Crim. P.-includes the right to an attorney free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271 (1981) ("Where a constitutional right to counsel exists, . . . there is a correlative right to representation that is free from conflicts of interest."); Maricopa Cty. Pub. Def.'s Office v. Superior Court, 187 Ariz. 162, 165 (App. 1996) ("The guarantees of the Sixth Amendment include the right to an attorney with undivided loyalty.").

¶10 The United States Supreme Court instructs that, where trial counsel has "focused explicitly on the probable risk of a conflict of interests"-as the prosecutor undoubtedly did in this case-the trial court must "take adequate steps to ascertain whether the risk [is] too remote to warrant separate counsel." Holloway, 435 U.S. at 484; see also Cuyler v. Sullivan, 446 U.S. 335, 346 (1980) ("Holloway requires state trial courts to investigate timely objections to multiple representation."). A trial court's failure to discharge this duty "deprive[s] [defendants] of the guarantee of 'assistance of counsel.'" Holloway, 435 U.S. at 484.

¶11 As the dissent in Holloway clarified, the majority's approach in that case was "not premised on an ultimate finding of conflict of interest or ineffective assistance of counsel." Id. at 492 (Powell, J., dissenting). Rather, the Court presumed prejudice from the judge's failure to conduct a "requisite inquiry," "equating that failure with a violation of the Sixth Amendment guarantee." Id.; see also Cuyler, 446 U.S. at 345 (explaining Holloway "held that the trial court's error unconstitutionally endangered the right to counsel"). Thus, a defendant may challenge such a constitutional infirmity on direct appeal without reference to the competence or particular acts or omissions of his counsel, even if the effectiveness of his counsel may also be subject to review in subsequent Rule 32 proceedings.

¶12 The state argues that the appealability of this claim is controlled by our state supreme court's holding in Spreitz. There, the court mandated that all claims challenging the conduct of trial counsel must be brought in Rule 32 proceedings rather than on direct appeal. Spreitz, 202 Ariz. 1, ¶ 9. In so doing, it clarified or disapproved of its prior cases that had addressed such claims piecemeal. Id. ¶ 11. But those cases all involved claims that particular decisions, behaviors, or failures of trial counsel rendered their assistance ineffective. None involved claims that the trial court had erred. Id. ¶¶ 2-3, 11 ("modifying] and clarify[ing]" State v. Tison, 142 Ariz. 454 (1984), State v. Carriger, 132 Ariz. 301 (1982), and State v. Watson, 114 Ariz. 1 (1976); "disapproving] of" State v. Scrivner, 132 Ariz. 52 (App. 1982)).

¶13 We recognize that when the record supports a plausible claim that the trial court erred in allowing conflicted counsel to represent a defendant, the record might also support a parallel claim of ineffective assistance of counsel. Our courts, however, have had no difficulty distinguishing the two. In State v. Tucker, 205 Ariz. 157 (2003), issued a year after Spreitz, the supreme court reached on appeal the merits of Tucker's claim that the trial court violated his right to the assistance of conflict-free counsel...

To continue reading

FREE SIGN UP