State v. Jenkins

• Decision Date: 27 January 1986
• Docket Number: No. 6612-PR,6612-PR
• Citation: 715 P.2d 716,148 Ariz. 463
• Parties: STATE of Arizona, Appellee, v. Ben JENKINS and Frances E. Jenkins, Appellants.
• Court: Arizona Supreme Court

Page 716

715 P.2d 716

148 Ariz. 463

STATE of Arizona, Appellee, v. Ben JENKINS and Frances E. Jenkins, Appellants.

No. 6612-PR.

Supreme Court of Arizona,

In Banc.

Jan. 27, 1986.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Crane McClennen Asst. Attys. Gen., Phoenix, for appellee.

John Doherty, Phoenix, for appellant Ben Jenkins.

Kanne & Bickart by Allen Bickart, Phoenix, for appellant Frances Jenkins.

CAMERON, Justice.

Defendant, Ben Jenkins, was convicted of two counts of child molestation, A.R.S. § 13-1410, and was sentenced to serve two consecutive fourteen-year prison terms. His wife, Frances Jenkins, was convicted in the same trial of one count of child abuse, A.R.S. § 13-3623 and was sentenced to three years probation. The Court of Appeals, Division One, affirmed the convictions of both Frances and Ben Jenkins. [Nos. 1 CA-CR 6592 and 1 CA-CR 6607 (consolidated), filed 9 April 1985]. Ben Jenkins petitions this court for review. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Rule 31.19, Ariz.R.Crim.P., 17 A.R.S.

We granted the defendant's petition for review to decide whether defendant was denied effective assistance of counsel because his attorney had a conflict of interest stemming from a simultaneous representation of a prosecution witness in a divorce action.

The facts necessary to determine the issue follow. Child Protective Services received a telephone call from the Jenkins' emancipated daughter, Gwen, who stated that she believed her two youngest sisters were being sexually molested by their father, Ben Jenkins. As a result of the call, the two sisters were removed from the Jenkins' home to a foster home. In addition, Child Protective Services referred the allegations to the Phoenix Police Department, which resulted in an investigation by Detective Guisti of the Sex Crimes Division.

During his investigation, Guisti interviewed the two victims, one age 7, and the other age 5. By phone he interviewed Gwen, who said that she and her other sister, Ruby, had also been molested sexually as children. He tried to talk to Ruby. Ruby denied ever having been sexually molested and asserted that the allegations must have been fabricated by Gwen. Guisti received information from the doctors who examined the two victims. The doctors found that both girls showed signs of penetration. Lastly, Guisti interviewed Mrs. Jenkins in her home alone. Mrs. Jenkins attempted to explain the older victim's broken hymen, stating that she had caught her trying to insert a tampon. When confronted with the fact that the youngest daughter had a traumatized hymen, she responded, "[her] too?"

At the Grand Jury hearing, Detective Guisti was the only prosecution witness. As a result of the hearing, the Grand Jury issued warrants for the arrest of both Ben and Frances Jenkins.

Early in the proceeding, the trial court appointed separate counsel for Ben and Frances. On 16 August 1982, the court held a voluntariness hearing for Frances only; Ben had not made any statements to police. Detective Guisti was again the only witness. Ben's counsel, Ron Saper, was present at this hearing, but he did not cross-examine Guisti.

It was at the time of this voluntariness hearing that Ron Saper undertook to represent Detective Guisti in a divorce action. According to his testimony at the defendant's hearing on the motion to vacate, Detective Guisti approached Saper on 16 August 1982, and asked Saper if he would represent him in an uncontested divorce. Saper agreed. It is not clear whether the representation was agreed to before or after the voluntariness hearing; however, the voluntariness hearing is not tainted because it concerned only Frances' statements. Saper is certain that he and counsel for Frances Jenkins also interviewed Guisti before the divorce representation began. However, Detective Guisti testified that he believed the interview took place after the representation began.

The trial commenced on 17 August with the empaneling of the jury. On 19 August opening statements were given, and on that same date, according to Saper, Guisti went to Saper's office to fill out some The state's primary witnesses at trial were the two victims. In addition, the state called various medical personnel who had examined the girls. On 24 August 1982, Detective Guisti was called to testify for the prosecution. On direct examination, Guisti testified briefly that he had spoken to both victims, but did not testify as to the content of their statements. His testimony for the most part, concerned his conversation with Frances Jenkins which was cumulative of previous testimony. Saper's cross-examination of Guisti was approximately the same as Frances' attorney's cross-examination of Guisti. Guisti's entire testimony including the cross-examination by the two defense attorneys, comprised only eight pages of transcript.

forms relating to his divorce action. Guisti testified that he did not meet with Saper on that date, and maintains that he did not meet with Saper about the divorce action until 1 September 1982.

On the same day that Guisti testified, pleadings in Guisti's divorce action were filed. In the motion to vacate, Saper stated that his secretary had prepared the pleadings which he then simply signed and dated. Saper also stated that he had not met with Guisti concerning the divorce action since 16 August. Guisti agreed that they did not meet as attorney and client during trial.

The defenses of both Ben and Frances were based on their good characters and thus, both defendants called many character witnesses. Ben Jenkins took the stand in his own behalf and denied the allegations. The defense of Ben Jenkins centered on the idea that Gwen had fabricated the allegations and had even injured both girls so that it would look like sexual penetration. Frances Jenkins did not testify.

At no time during the trial did Ben Jenkins make a knowing waiver of the conflict of interest. Saper contends that he told Jenkins sometime during trial that he was representing Guisti in a divorce action; this fact, however even if true, does not indicate a knowing waiver as required by Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). In addition, it is clear that the trial judge was not informed during trial of the conflict. On the other hand, the facts seem to indicate that the prosecutor, through uncertain means, was aware of the situation between Saper, Guisti, and Jenkins.

Preliminarily, we note that professionally Saper had a conflict of interest. See Rule 1.7, Arizona Rules of Professional Conduct. We do not condone his actions. We believe at a minimum that Saper should have consulted with his client and obtained a written waiver from him. In addition, he should have informed the trial judge of the conflict. It does not follow, however, that a violation of Rule 1.7 results in an automatic finding of ineffectiveness of counsel.

The Sixth Amendment to the United States Constitution, as well as the Arizona Constitution, art. 2, § 24, and Rule 6.1, Ariz.R.Crim.P., 17 A.R.S., provide a defendant the right to assistance of counsel. The right to assistance of counsel has been held to mean effective assistance. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The rationale behind the right to effective assistance of counsel is to ensure a fair trial.

Cases on ineffectiveness of counsel have come before the United States Supreme Court in two contexts: (1) conflict of interest due to multiple representation of co-defendants and (2) counsel incompetency. The former context was presented in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), while the latter was decided in the recent case, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

In Cuyler, the Court stated a defendant had to establish that "an actual conflict of interest adversely affected his lawyer's performance" in order to prevail on a sixth amendment claim. 100 S.Ct. at 1719. However, the Court also provides that "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." Id.

In the later case of Strickland, the United States Supreme Court set forth a two- In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interest. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, ... it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest.

                part test to determine whether counsel's incompetency denied defendant his right to effective assistance.  First, defendant must show that counsel's performance was deficient, and second, that the deficient performance prejudiced the defense.  104 S.Ct. at 2064.   Justice O'Connor, writing for the majority in Strickland, discussed Cuyler and the prejudice requirement.  She stated that in a situation where assistance of counsel is actually or constructively denied or where the state interferes with counsel's assistance (See U.S. v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ), prejudice will be presumed.  Id. at ----, 104 S.Ct. at 2067.   Next, Justice O'Connor discussed conflicts of interest from multiple representation
                

Strickland v. Washington, 466 U.S. at ----, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. (citation omitted). The Court, however, refused to characterize the rule as a "per se" doctrine, stating:

Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant...