State v. Duffy

• Decision Date: 17 May 2021
• Docket Number: No. CR-19-0386-PR,CR-19-0386-PR
• Citation: 251 Ariz. 140,486 P.3d 197
• Parties: The STATE of Arizona, Appellee, v. David Joseph DUFFY, Appellant.
• Court: Arizona Supreme Court

251 Ariz. 140

486 P.3d 197

The STATE of Arizona, Appellee,

v.David Joseph DUFFY, Appellant.

No. CR-19-0386-PR

Supreme Court of Arizona.

Filed May 17, 2021

Mark Brnovich, Arizona Attorney General, Brunn (Beau) W. Roysden III, Solicitor General, Linley Wilson, Chief Counsel, Joshua C. Smith (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona

Daniel J. DeRienzo (argued), Law Office of Daniel J. DeRienzo, PLLC, Prescott Valley, Attorney for David Joseph Duffy

Carol Lamoureux (argued), Law Office of Hernandez & Hamilton, PC, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

JUSTICE BOLICK authored the Opinion of the Court, in which CHIEF JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER, and JUSTICES LOPEZ, BEENE, and MONTGOMERY joined.^*

JUSTICE BOLICK, Opinion of the Court:

¶1 In this case we hold that when a trial court is advised of a potential conflict arising from an attorney's representation of a co-defendant, it must conduct an independent inquiry to confirm that the defendant's Sixth Amendment right to conflict-free counsel was waived knowingly and voluntarily. Critically, to satisfy its duty, the court must do more than simply credit the attorney's assurances that the defendants had common defenses and waived any conflict.

BACKGROUND

¶2 In January 2017, a police sergeant monitoring highway traffic was alerted to a nearby SUV that was driving suspiciously close to another vehicle. The sergeant found and pulled over the SUV after observing that it was speeding and changing lanes abruptly.

¶3 The SUV was driven by defendant David Joseph Duffy with co-defendant Dora Matias in the passenger seat. During the traffic stop interview, the sergeant noticed burlap-wrapped bundles in the back seat, which he suspected contained marijuana. He then placed Duffy and Matias under arrest.

After testing, the bundles were found to contain over 240 pounds of marijuana.

¶4 In a separate interview, Matias initially confessed that she had picked up the marijuana and expected to be paid for doing so. But she maintained that Duffy did not know about the transaction and was merely driving her. Duffy also claimed that he was unaware of plans to pick up the drugs, explaining that any discussion he overheard was in Spanish, a language he did not understand. Matias later retracted her confession.

¶5 A grand jury charged each defendant with conspiracy, possession and transportation of marijuana for sale, and unlawful possession of drug paraphernalia. At Duffy's arraignment, the prosecutor noted his "real concern about one attorney representing both codefendants in a case where there [are] obviously competing defenses." At a later hearing on the issue, the prosecutor repeated that "I have an obligation to protect the rights of the defendants" and "I take that obligation seriously." More specifically, he warned of possible "competing interests" because "there is at least a potential for adverse defenses."

¶6 Defense counsel dismissed these concerns, replying that there was "no cognizable issue" as to joint representation of the two defendants because they had "essentially ... a common defense agreement" and signed a waiver of potential conflict after being adequately advised of their rights.

¶7 The court made no further inquiry and did not address the defendants. The judge stated that "[i]t appears that the defendants have been fully advised with regard to this situation," and that "I will defer to [defense] counsel. I am required [to] do that in any event, but I would, even if not required."

¶8 The jury ultimately convicted both defendants on all counts. The court sentenced Duffy to three concurrent prison terms, the longest of which was six years.

¶9 In a split decision, the court of appeals vacated Duffy's conviction and remanded for a new trial. The court rejected the State's argument that the appeal was premature, holding that Duffy could raise on direct appeal the adequacy of the trial court's inquiry into 1) possible conflict presented by joint representation of the two defendants and 2) whether Duffy waived the conflict in a knowing and voluntary manner. State v. Duffy , 247 Ariz. 537, 542 ¶¶ 7–8, 453 P.3d 816, 821 (App. 2019). The panel majority held that the joint representation presented an actual conflict that violated Duffy's Sixth Amendment right to conflict-free representation. Id. at 550 ¶ 36, 453 P.3d at 829.

¶10 We granted review on both the direct appeal and Sixth Amendment questions because they present recurring issues of statewide importance. We consider questions of law de novo, Ansley v. Banner Health Network , 248 Ariz. 143, 147 ¶ 8, 459 P.3d 55, 59 (2020), and have jurisdiction pursuant to article 6, section 5, clause 3 of the Arizona Constitution.

ANALYSIS

¶11 The first question before us is whether a defendant may raise this issue by direct appeal or if he may only do so through a Rule 32 post-conviction relief proceeding. See Ariz. R. Crim. P. 32. The court of appeals observed that challenges to ineffective counsel must be raised in a Rule 32 proceeding but distinguished Duffy's challenge as arising from the trial court's failure to protect his constitutional right to conflict-free counsel, which can be raised directly. Duffy , 247 Ariz. at 544 ¶ 15, 453 P.3d at 823 ; see also, e.g. , State v. Tucker , 205 Ariz. 157, 162 ¶ 23, 68 P.3d 110, 115 (2003) (considering such issues on direct appeal).

¶12 Although this issue was argued by the parties below, the State now concedes that "unlike a claim that an attorney was ineffective brought pursuant to Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), there is generally a sufficient record on direct appeal to determine whether a trial court adequately protected a defendant's Sixth Amendment right to conflict-free counsel." We agree that the narrow issue of whether the trial court adequately ensured the defendant's right to conflict-free counsel may be raised on direct appeal. See, e.g. , State v. Moore , 222 Ariz. 1, 16 ¶¶ 81–83, 213 P.3d 150, 166 (2009) ; Tucker , 205 Ariz. at 162–64 ¶¶ 19–33, 68 P.3d at 115–17.

¶13 The second issue before us is whether the trial court adequately confirmed that Duffy waived his right to conflict-free counsel. The Sixth Amendment guarantees an accused the right to assistance of counsel in all criminal proceedings. U.S. Const. amend. VI. Among counsel's "basic duties" is "to avoid conflicts of interest." Strickland , 466 U.S. at 688, 104 S.Ct. 2052 (citing Cuyler v. Sullivan , 446 U.S. 335, 346, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ).

¶14 Representation of multiple criminal defendants by the same attorney sometimes may be strategically warranted, but it raises conflict risks. See, e.g. , Wheat v. United States , 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988) (recognizing that "multiple representation of criminal defendants engenders special dangers of which a court must be aware"). These risks alone cannot sustain a challenge, for "multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest." Cuyler , 446 U.S. at 348, 100 S.Ct. 1708. Thus, "[a]bsent special circumstances," trial courts may assume that multiple representation entails no conflict and that the client knowingly accepts such risks. Id. at 346–47, 100 S.Ct. 1708. Ordinarily, an attorney representing multiple defendants is in the best position, consistent with ethical obligations, to assess whether a risk of conflict exists and that the defendants wish to proceed regardless. Holloway v. Arkansas , 435 U.S. 475, 485, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Thus, "[u]nless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." Cuyler , 446 U.S. at 347, 100 S.Ct. 1708.

¶15 The Court has also recognized that a defendant may waive the Sixth Amendment right to conflict-free counsel. Holloway , 435 U.S. at 483 n.5, 98 S.Ct. 1173. That is because the purpose of the Sixth Amendment guarantee is to grant a right rather than impose an obligation, and therefore a defendant may waive the right if "he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann , 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942). But "[w]hile an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court." Johnson v. Zerbst , 304 U.S. 458, 465, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). "This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused." Id.

¶16 In the multiple representation context, to "establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler , 446 U.S. at 348, 100 S.Ct. 1708. Once that predicate is established, a defendant need not establish prejudice, for "unconstitutional multiple representation is never harmless error." Id. at 349, 100 S.Ct. 1708 (citing Glasser v. United States , 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942) ).

¶17 Trial courts have broad latitude in conducting the requisite inquiry into conflict and waiver. See, e.g. , Johnson , 304 U.S. at 464, 58 S.Ct. 1019 ("The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."); Wheat , 486 U.S. at 163, 108 S.Ct. 1692 (according trial courts "substantial latitude").

¶18 Even so, we cannot approve the trial court's judgment in this case. Although it was on notice of possible conflict, it deferred to defense counsel's assurances and failed to conduct any meaningful inquiry into the conflict. Recognizing his duty...