State v. Nozolino

• Court: Colorado Supreme Court
• Writing for the Court: RICE
• Citation: State v. Nozolino, 2013 CO 19, Supreme Court Case No. 12SA189 (Colo. Mar 25, 2013)
• Decision Date: 25 March 2013
• Docket Number: Supreme Court Case No. 12SA189
• Parties: In re: Plaintiff: The People of the State of Colorado, v. Defendant: Bruce J. Nozolino.

2013 CO 19

In Re: Plaintiff: The People of the State of Colorado,

v.Defendant: Bruce J. Nozolino.

Supreme Court Case No. 12SA189

Colorado Supreme Court

March 25, 2013

Original Proceeding Pursuant to C.A.R. 21

El Paso County District Court Case No. 10CR2496

Honorable Victor I. Reyes, Judge

Rule Made Absolute

en banc

Attorneys for Plaintiff:

Daniel H. May, District Attorney, Fourth Judicial District

Donna J. Billek, Senior Deputy District Attorney

Deborah F. Pearson, Senior Deputy District Attorney

Doyle Baker, Senior Deputy District Attorney

Colorado Springs, Colorado

Attorneys for Defendant:

Walta LLC

Mark G. Walta

Denver, Colorado

Tina L. Tussay

Castle Rock, Colorado

Attorneys for Amicus Curiae Office of Alternate Defense Counsel:

The Law Office of Jonathan D. Rosen P.C.

Jonathan D. Rosen

Denver, Colorado

Attorneys for Amicus Curiae Colorado State Public Defender:

Douglas K. Wilson, Public Defender

Frances Smylie Brown, Chief Deputy Public Defender

Denver, Colorado

JUSTICE RICE delivered the Opinion of the Court.

¶1 In this original proceeding, Petitioner Bruce J. Nozolino ("Nozolino") seeks to vacate the trial court's order disqualifying the Office of the State Public Defender as counsel for Nozolino. The trial court disqualified the Public Defender, holding that a conflict exists and that the conflict is not waivable. Nozolino petitioned this Court asserting that the trial court abused its discretion when it ordered disqualification of the Public Defender's office. We issued a rule to show cause and now make the rule absolute.

I. Facts and Procedural History

¶2 This matter arises from the El Paso County District Court's decision on April 20, 2012, to disqualify the Public Defender from continuing to represent Nozolino, defendant in district court action 10CR2496, in which Nozolino is charged with thirty-one counts of homicide-related crimes.

¶3 When Nozolino'shomicide case began, he filed two applications with the trial court seeking appointed counsel. The trial court determined that Nozolino was indigent, and accordingly appointed Carrie Thompson ("Thompson"), the head of the Public Defender's regional trial office in Colorado Springs, and Rosalie Roy ("Roy") of the Public Defender's regional trial office in Colorado Springs, to represent Nozolino.

¶4 Subsequently, the district attorney charged Nozolino with two counts of first-degree perjury in a separate action. The charges arose from information contained in Nozolino'sapplications for court-appointed counsel in the homicide case. The trial court appointed the Public Defender's office to represent Nozolino in the perjury case as well, but the Public Defender moved to withdraw from that case after the prosecution listed Thompson as a witness in its perjury case. At the same time, Thompson withdrew from representing Nozolino in the homicide case and the Public Defender'soffice took actions to "wall off" Thompson from the homicide case. Two attorneys from the Public Defender'soffice, Roy and Kimberly Chalmers ("Chalmers"), continued to represent Nozolino in the homicide case.

¶5 At a pretrial hearing in Nozolino's homicide case, the trial court expressed concern over the potential for a conflict of interest if the Public Defender'soffice continued to represent Nozolino in the homicide case when Thompson was listed as a prosecution witness in the perjury case. After briefing and a hearing on the issue, the trial court ruled that the Public Defender's office had an unwaivable conflict of interest under Colo. RPC 1.7 and 1.9. The trial court based this ruling on the fact that the prosecution designated Thompson as a potential witness in the perjury case and that Thompson supervises Roy and Chalmers. Further, the trial court determined that the conflict should be imputed to the Public Defender'soffice as a whole pursuant to Colo. RPC 1.11. Nozolino told the trial court that he wanted the Public Defender'soffice to continue to represent him in the homicide case, but the trial court determined that the conflict could not be waived. Accordingly, the trial court disqualified the Public Defenders from further participation in the case and ordered that Alternate Defense Counsel be appointed to handle the homicide matter.

¶6 Nozolino filed a motion seeking reconsideration of the trial court's ruling disqualifying the Public Defenders. The trial court denied the motion. Nozolino was ultimately acquitted of the perjury charge in the proceeding in which Thompson testified.

¶7 Nozolino petitioned this Court pursuant to C.A.R. 21 to issue a rule to show cause why the district court's order disqualifying his counsel of choice in the homicide case due to an alleged conflict of interest that the trial court deemed both unwaivable and imputable to the Public Defender'soffice as a whole should not be disapproved. We issued a rule to show cause and now make that rule absolute.

II. C.A.R. 21 Jurisdiction

¶8 This Court may exercise its original jurisdiction pursuant to C.A.R. 21 to provide extraordinary relief when appellate review will not provide an adequate remedy. C.A.R. 21. Here, if the trial court's ruling is allowed to stand, Nozolino must proceed with Alternate Defense Counsel representing him rather than his counsel of choice, the Public Defenders. Therefore, it is appropriate for this Court to exercise original jurisdiction over this matter.

III. Standard of Review

¶9 This Court reviews a trial court's interpretation of a rule of professional conduct de novo because it presents a question of law. See City & Cnty. of Broomfield v. Farmers Reservoir & Irrigation Co.,239 P.3d 1270, 1275 (Colo. 2010) (reviewing the interpretation of a rule of civil procedure de novo).

¶10 We also review the trial court's decision to disqualify counsel for a conflict of interest. Trial courts have broad discretion in deciding whether to disqualify counsel. People v. Shari,204 P.3d 453, 457 (Colo. 2009); People v. Harlan, 54 P.3d 871, 877 (Colo. 2002). Accordingly, we review decisions to disqualify counsel for an abuse of discretion. Shari, 204 P.3d at 457; Harlan, 54 P.3d at 877.

IV. Analysis

¶11 The issue before the Court is whether a conflict of interest exists and, if so, whether that conflict is waivable. To answer these questions, we first discuss disqualification. Then, we review the law regarding waiver of the right to conflict-free representation. We determine, after balancing the interests presented and applying the facts of this case, that if a conflict exists between Roy and Nozolino, or Chalmers and Nozolino, such conflict is waivable.

A. Disqualification

¶12 The right to effective assistance of counsel encompasses the right to conflict-free representation by counsel. People v. Martinez, 869 P.2d 519, 524 (Colo. 1994) (citing Holloway v. Arkansas, 435 U.S. 475, 483-84 (1978)); Rodriguez v. Dist. Court, 719 P.2d 699, 706 (Colo. 1986). "The right to the effective assistance of counsel can therefore be violated by ‘representation that is intrinsically improper due to a conflict of interest.'"Dunlap v. People,173 P.3d 1054, 1070 (Colo. 2007) (quoting People v. Castro, 657 P.2d 932, 943 (Colo. 1983)). In the event of a conflict of interest, the attorney may be disqualified from representing the client to safeguard the client's Sixth Amendment rights. See Shari, 204 P.3d at 460.

¶13 The trial court has the discretion to disqualify an attorney from further representation, however, the court must take into account the importance of continued representation of a party by his counsel of choice. In re Estate of Myers, 130 P.3d 1023, 1025 (Colo. 2006). Disqualification of a party's chosen attorney is an extreme remedy and is only appropriate where required to preserve the integrity and fairness of the judicial proceedings. Id.at 1025-26. A defendant's counsel of choice cannot be disqualified absent a showing that there is "a clear danger that prejudice to a client or adversary would result from continued representation." Id.at 1025 (citation omitted). The required showing of prejudice cannot be based on mere speculation or conjecture. Id.And the trial court must determine that "any remedy short of disqualification would be ineffective." Id.at 1027.

¶14 Here, the trial court disqualified Roy and Chalmers from representing Nozolino in the homicide case despite Nozolino's express preference to have these attorneys continue to represent him. The trial court based this holding on its determination that a conflict of interest exists between Thompson and Nozolino,¹but did not find that any prejudice would result from Roy and Chalmers's continued representationof Nozolino. The trial court found that Thompson is Roy and Chalmers's supervisor. The record does not establish, however, that Roy or Chalmers's representation of Nozolino has been materially limited by their relationship with Thompson. Likewise, the record is devoid of evidence that disqualification is the only effective remedy.

¶15 Based on the record before us, we are not persuaded that a direct conflict exists between Roy and Nozolino, or Chalmers and Nozolino. In any event, we determine that Nozolino should have the opportunity to waive conflict-free representation under these circumstances.

B. Waiver of the Right to Conflict-Free Representation

¶16 The trial court found that a non-waivable conflict exits between Roy and Nozolino, and Chalmers and Nozolino. We disagree. A defendant may, in some circumstances, waive his right to conflict-free representation. Colo. RPC 1.7; Harlan,54 P.3d at 879; Castro,657 P.2d at 944. For a defendant to waive the right to conflict-free representation, the lawyer must reasonably believe that he will be able to provide competent and diligent representation, and the defendant must give informed consent. Colo. RPC 1.7. Also, the defendant must be fully advised of potential and existing conflicts of interest. Martinez,869 P.2d at 524. Even then, a defendant's right to waive conflict-free representation is not...