Tyson v. District Court for Fourth Judicial Dist., El Paso County, State of Colo.
| Decision Date | 06 March 1995 |
| Docket Number | No. 94SA351,94SA351 |
| Citation | 891 P.2d 984 |
| Parties | Robert Long TYSON and Barbara Germaine Whitehorn Tyson, Petitioners, v. The DISTRICT COURT FOR the FOURTH JUDICIAL DISTRICT, EL PASO COUNTY, STATE OF COLORADO, and the Honorable Gilbert A. Martinez, one of the Judges thereof, Respondents. |
| Court | Colorado Supreme Court |
Melat, Pressman, Ezell & Higbie, Bernard R. Baker, Colorado Springs, for petitioners.
John W. Suthers, Dist. Atty., Robert D. Jones, Deputy Dist. Atty., Fourth Judicial Dist., Colorado Springs, for respondents.
The petitioners-defendants, Robert Long Tyson and Barbara Germaine Whitehorn Tyson, have filed this original proceeding pursuant to C.A.R. 21, challenging an order of the El Paso County District Court. We issued a rule directing the respondent, the El Paso County District Court, to show cause why the defendants should be prohibited from having their retained counsel represent both their interests. Because we hold that the district court's order deprived the defendants of the right to counsel of their choice, we now make the rule absolute and direct the district court to vacate its August 22, 1994 order.
By indictment, the defendants, Robert Tyson and Barbara Germaine Whitehorn Tyson, husband and wife, were charged with felony menacing, § 18-3-206, 8B C.R.S. (1986); prohibited use of a weapon, § 18-12-106, 8B C.R.S. (1986); criminal mischief, § 18-4-501, 8B C.R.S. (1994 Supp.); reckless endangerment, § 18-3-208, 8B C.R.S. (1986); reckless driving, § 42-4-1203, 17 C.R.S. (1993); possession of marihuana, § 18-18-106, 8B C.R.S. (1986); second-degree assault, § 18-3-203, 8B C.R.S. (1986 & 1994 Supp.); and illegal discharge of a firearm, § 18-12-107.5, 8B C.R.S. (1994 Supp.), in connection with a drive-by shooting on the interstate highway.
The defendants retained the same attorney to represent them in defending against these charges. At the preliminary hearing in July 1994, the El Paso County District Court determined that no conflict of interest existed by both defendants' being represented by the same attorney, based on all the attendant facts and circumstances. During the course of this hearing, the following colloquy ensued between the district court and the defendants:
THE COURT: Mr. Tyson and Ms. Whitehorn, you have one attorney representing you.... That raises a conflict of interest. It's not a potential conflict, it is a conflict. Do you understand that?
....
THE COURT: And ... the reason why there is a conflict, is two reasons:
One, if you each had an attorney that was not the same, that attorney may be able to get a better plea bargain for you by saying, "It's not my fault, it's Mr. Tyson's fault", or it's the other way around, "It's not my fault", Mr. Tyson, "it's Ms. Whitehorn's fault". In other words, your attorneys would be able to perhaps shed some blame on the other party. Do you understand that?
....
THE COURT: That is going to affect a potential defense at trial. [Your attorney] will not be able to tell a jury trial--or jurors, that you are not at fault, that the co-Defendant's at fault. Do you understand that?
....
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THE COURT: And do you have any questions or problems with [your attorney] representing both of you?
....
....
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THE COURT: All right. I just want you both to understand that another attorney might be more effective representing you than [your attorney] is, because of the conflict. Do you understand that?
....
District Judge Martinez additionally appointed advisory counsel for each defendant in order for the court to further assess the representation issue. Each court-appointed attorney interviewed his respective party separately for the limited purpose of ascertaining the existence of a conflict. Following the completed interviews, the district court gleaned what had transpired between the advisory counsel and each defendant. The advisory counsel expressed to the court that both of the defendants remained intent on having their attorney represent them:
[ADVISORY COUNSEL FOR BARBARA WHITEHORN]: ... [H]ere are some issues that were discussed, either in depth, or touched upon, depending on how much I thought they were involved in this case.
The diversity of liability for the two persons potentially being an issue; sentencing exposure; mitigating factors; aggravating factors; ... the general concept of who would have been, if convicted--if either of them would have been convicted, who would be considered more blameworthy, so to speak. We had some discussion of the severance of the two Defendants as a trial tactic.... Plea bargaining was certainly discussed. The fact that either both or neither parties might choose to testify at trial, which I thought was a big issue here, along with the plea bargaining, along with the sentencing issues.... Jury selection, we spent a significant amount of time on that, which I thought was an issue here.
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And I believe [Ms. Whitehorn] listened to those, and was able to intelligently discuss those matters with me, and it's my clear belief that she desires to have [her attorney], ... she wants [the retained attorney] to represent her.
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[ADVISORY COUNSEL FOR ROBERT TYSON]: ... I met with my client.... We talked at length ... [about] the same topics as [the other advisory counsel] discussed with his client; differences in culpability, differences in the appropriateness of a plea, the differences between husband and wife concerning the appropriateness of a plea agreement, differences concerning who should testify and not testify, and how a jury might perceive the difference between joint representation and representation by separate attorneys.
... [Mr. Tyson] understands the charge against him.... He also understands the potential conflicts as well, and he desires to waive those conflicts.
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I don't think the public would perceive a flaw in the judicial system if husband and wife, with a great unity of interest, decide to conduct a joint defense, and in fact, Your Honor, based upon [a] ... review of the facts of this case, I think a joint defense is in these Defendants' best interests.
So, therefore, I would urge the Court to accept the Defendant's waiver of the conflict, and allow [the retained attorney] to represent the parties as they desire.
The court thereafter received signed affidavits from both defendants waiving any conflict of interest and engaged in the following exchange:
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