West v. People, Supreme Court Case No. 12SC301

Citation2015 CO 5, 341 P.3d 520
Case DateJanuary 20, 2015
CourtSupreme Court of Colorado

341 P.3d 520
2015 CO 5

Thomas Ray WEST, Petitioner
The PEOPLE of the State of Colorado, Respondent.

Raymond Albert Cano, Petitioner/Cross–Respondent
The People of the State of Colorado, Respondent/Cross–Petitioner.

Supreme Court Case No. 12SC301
Supreme Court Case No. 13SC209

Supreme Court of Colorado.

January 20, 2015

Attorney for Petitioner Thomas West: William J. Fritsche, P.C., William J. Fristche, Fort Collins, Colorado

Attorneys for Respondent: Cynthia H. Coffman, Attorney General, Ryan A. Crane, Assistant Attorney General, Denver, Colorado

Attorney for Amicus Curiae Colorado Criminal Defense Bar: Reppucci Law Firm, P.C., Jonathan D. Reppucci, Denver, Colorado

Attorney for Petitioner/Cross–Respondent Raymond Cano: Law Office of Gregory Lansky, LLC, Gregory Lansky, Aurora, Colorado

Attorneys for Respondent/Cross–Petitioner: Cynthia H. Coffman, Attorney General, Christine C. Brady, Senior Assistant Attorney General, Denver, Colorado

En Banc


JUSTICE HOOD delivered the Opinion of the Court.

¶ 1 What analytical framework should a trial court use to resolve a criminal defendant's post-conviction claim of ineffective assistance of counsel based on alleged conflicts of interest arising from concurrent or successive representation of witnesses against the defendant? We granted certiorari to address this issue and petitioners' shared contention that, under People v. Castro, 657 P.2d 932 (Colo.1983), they should not be required to demonstrate a separate “adverse effect” in addition to a conflict of interest in order to receive new trials.

¶ 2 While Castro said that an attorney who labors under a real and substantial conflict of interest “cannot avoid being adversely affected,” id. at 944–45, that language cannot be reconciled with the holding in Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). In Mickens, the Supreme Court held that in order to demonstrate a Sixth Amendment violation, a defendant must establish that the conflict of interest adversely affected his counsel's performance. Based on the Supreme Court's holding in Mickens, we now overrule Castro.

¶ 3 In order to prevail on an ineffective assistance of counsel claim predicated on trial counsel's alleged conflict of interest arising from concurrent or successive representation of trial witnesses against a defendant, we hold that a defendant must show by a preponderance

341 P.3d 524

of the evidence both a conflict of interest and an adverse effect resulting from that conflict. To show an adverse effect, a defendant must (1) identify a plausible alternative defense strategy or tactic that trial counsel could have pursued, (2) show that the alternative strategy or tactic was objectively reasonable under the facts known to counsel at the time of the strategic decision, and (3) establish that counsel's failure to pursue the strategy or tactic was linked to the actual conflict. A defendant may prove the link under the third prong by showing that the alternative strategy or tactic was inherently in conflict with counsel's other loyalties or interests or by showing that the alternative strategy or tactic was not undertaken due to those other loyalties or interests.1

I. Facts and Procedural History

A. West

¶ 4 During 2002 and 2003, a Colorado state public defender with the Mesa County Regional Office (hereinafter “the Mesa public defender” or “West's trial counsel”) represented Thomas West after the victim's mother, D.S., informed police that she discovered West lying in bed next to her six-year-old daughter with his genitals exposed. D.S. and her ex-husband, D.E.S., both testified at trial for the prosecution.

¶ 5 Colorado public defenders had represented D.S. approximately 23 times over the eight years preceding West's case. Although West's trial counsel had never himself represented D.S., the Mesa County Office represented her seven times between 1998 and 2001. D.S. was also a client of the El Paso County Regional Office, where she had an open case during West's trial at issue here.

¶ 6 In addition, the Mesa County Office represented D.S.'s ex-husband, D.E.S., five times between 1999 and 2002. West's trial counsel had filed an entry of appearance in one of these cases, although the prosecution dismissed that case four days after that entry of appearance.

¶ 7 West's trial counsel did not inform West or the trial court about these possible conflicts of interest. There was no record regarding the conflict at trial. The jury convicted West of sexual assault on a child.

¶ 8 Following his trial, West filed a Crim. P. 35(c) motion, alleging that his trial counsel labored under a conflict of interest. The trial court found no conflict and denied the motion. The court of appeals reversed, holding that an actual conflict of interest arose from the public defender's dual role as prior and current counsel for D.S. and as prior counsel for D.E.S.2 The court of appeals remanded the case to the trial court to determine whether, under Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the alleged conflicts adversely affected the Mesa public defender's performance in West's trial.

B. Cano

¶ 9 Colorado state public defenders with the Adams County Regional Office represented Raymond Cano during his murder trial for a gang-related stabbing. At the same time, an attorney from that office entered an appearance for Sergio Aguilar, a prosecution witness against Cano, after Aguilar was arrested on an unrelated attempted murder charge. The Adams County Office thus represented both Cano and Aguilar in different matters during Cano's trial. Although

341 P.3d 525

Aguilar did not testify at the trial, evidence indicated that he could have been an alternate suspect in the stabbing alleged in Cano's case. Cano's attorneys did not pursue this theory. There was no record at trial of the conflict. A jury found Cano guilty of first degree murder.

¶ 10 Cano, like West, filed a Crim. P. 35(c) motion for post-conviction relief, raising the conflict of interest issue. The trial court denied the motion, finding that no conflict existed under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that even if a conflict existed, no prejudice to Cano's defense resulted from it. The court of appeals held that the trial court erred by applying Strickland and reversed and remanded for consideration under the Sullivan standard.3

II. Standard of Review

¶ 11 In a Crim. P. 35(c) proceeding, the trial court is the trier of fact and determines the weight and credibility of witness testimony. Dunlap v. People, 173 P.3d 1054, 1061–62 (Colo.2007) ; Kailey v. Colo. State Dep't of Corr., 807 P.2d 563, 567 (Colo.1991). We defer to a post-conviction court's findings of fact when they are supported by the evidence but review conclusions of law de novo. People v. Romero, 953 P.2d 550, 555 (Colo.1998) ; People v. Quezada, 731 P.2d 730, 732–33 (Colo.1987).

III. Analysis

¶ 12 After exploring the evolution of Sixth Amendment doctrine and the resulting right to effective, conflict-free counsel, we turn to the tension between our decision in Castro and the Supreme Court's holding in Mickens. We update our precedent to comport with Mickens and then turn to what measure of prejudice must be shown for a defendant to obtain post-conviction relief in this setting.

¶ 13 We hold that a defendant must show an “adverse effect” resulting from a conflict of interest. We then confront what “adverse effect” means and what analytical framework trial courts should use to evaluate when it exists. We explore various tests that have cropped up in the wake of Mickens, ultimately settling on a three-part test that we believe strikes an appropriate balance between a criminal defendant's right to have effective representation, in the form of conflict-free counsel, and the public's interest in the finality of verdicts.

A. The Right to the Assistance of Conflict–Free Counsel

¶ 14 “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defen[s]e.” U.S. Const. amend. VI ; see also Colo. Const. art. II, § 16 (“In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel.”). From this bedrock right, the Supreme Court has generated equally familiar corollaries, such as the right in some cases to appointed counsel and the right in all cases to the effective assistance of counsel. Strickland, 466 U.S. at 685–86, 104 S.Ct. 2052.

¶ 15 The overarching objective, of course, is to secure a criminal defendant's right to a fair trial. “The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the ample opportunity to meet the case of the prosecution.” Id. at 685, 104 S.Ct. 2052 (internal quotation marks omitted). Indeed, “[o]f all the rights that an accused person has, the right to be represented by...

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    ...appeal, the State argues this court should adopt Colorado's test to determine if Moyer has proven an adverse effect. In West v. People , 341 P.3d 520 (Colo. 2015), the Colorado Supreme Court noted that in the cases before the court, "[w]hether ‘actual’ conflicts [of interests] existed ... w......
  • People v. Garner
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    ...of interest can arise when one attorney simultaneously represents a defendant and a witness in that defendant's trial. West v. People, 2015 CO 5, ¶ 16, 341 P.3d 520. Similarly, a conflict may arise when an attorney has previously represented a trial witness, as such “ ‘successive representa......
  • West v. People, Supreme Court Case No. 12SC301
    • United States
    • Supreme Court of Colorado
    • January 20, 2015
    ...341 P.3d 520Thomas Ray WEST, Petitioner,v.The PEOPLE of the State of Colorado, Respondent.Raymond Albert Cano, Petitioner/Cross–Respondent,v.The People of the State of Colorado, Respondent/Cross–Petitioner.Supreme Court Case No. 12SC301, Supreme Court Case No. 13SC209Supreme Court of Colora......
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    ...F.3d 969, 974 (7th Cir. 2004).The Moyer court acknowledged the three tests and, in particular, the discussion of them in West v. People , 341 P.3d 520 (Colo. 2015). But the court then recognized that Moyer would lose under each of three formulations of adverse effect and didn't identify one......
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