State of Arizona v. David Joseph Duffy

IN THE

SUPREME COURT OF THE STATE OF ARIZONA
____________________________________________

THE STATE OF ARIZONA,
Appellee,

v.

DAVID JOSEPH DUFFY,
Appellant.
______________________________________________

No. CR-19-0386-PR
Filed May 17, 2021
______________________________________________

Appeal from the Superior Court in Cochise County
No. CR201700136
The Honorable James Conlogue, Judge (Retired)
REVERSED AND REMANDED
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Opinion of the Court of Appeals, Division Two
2 CA CR-2018-0071
Filed November 1, 2019
AFFIRMED
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COUNSEL:

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
 STATE OF ARIZONA V. DAVID JOSEPH DUFFY
Opinion of the Court

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.

∗ Although Justice Andrew W. Gould (Ret.) participated in the oral
argument in this case, he retired before issuance of this opinion and did not
take part in its drafting.

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¶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.

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Opinion of the Court

¶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 (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.

¶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 (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; see also, e.g., State
v. Tucker, 205 Ariz. 157, 162 ¶ 23 (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 (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

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raised on direct appeal. See, e.g., State v. Moore, 222 Ariz. 1, 16 ¶¶ 81–83
(2009); Tucker, 205 Ariz. at 162–64 ¶¶ 19–33.

¶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 (citing Cuyler v. Sullivan, 446 U.S. 335, 346 (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 (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. 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. 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 (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.

¶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. 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 (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 (1938). “This protecting duty
imposes the serious and weighty responsibility upon the trial judge of

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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. Once that predicate is
established, a defendant need not establish prejudice, for “unconstitutional
multiple representation is never harmless error.” Id. at 349 (citing Glasser v.
United States, 315 U.S. 60, 76 (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 (“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 (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 to serve the ends of justice, 1 the prosecutor
signaled his concern about multiple representation “in a case where there
[are] obviously competing defenses.” At a subsequent hearing, the
prosecutor repeated those concerns, explaining that “there is at least a
potential for adverse defenses,” and that “there are circumstances under
which it’s inappropriate to even consider a waiver of the conflict.” Defense
counsel responded that the two defendants shared a common defense and
that Duffy had signed a waiver. Without further inquiry or addressing

1 See In re Martinez, 248 Ariz. 458, 463 ¶ 8 (2020) (“Prosecutors’ unique role
in the justice system is recognized in ER 3.8, ‘Special Responsibilities of a
Prosecutor,’ which states that ‘[a] prosecutor has the responsibility of a
minister of justice and not simply that of an advocate,’ and has the duty to
‘see that the defendant is accorded procedural justice, that guilt is decided
upon the basis of sufficient evidence, and that special precautions are taken
to prevent and to rectify the conviction of innocent persons.’”).

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Duffy directly, the trial court approved joint representation, finding Duffy
had been “fully advised” and concluding that “I will defer to counsel. I am
required [to] do that in any event, but I would, even if not required.”

¶19 If the trial court believed it was required to defer to defense
counsel, or even permitted to do so once the court was on notice of possible
conflict, it was mistaken. As numerous United States Supreme Court
decisions have emphasized, once the court is advised that a possible conflict
exists, it must engage in an independent inquiry to determine whether the
waiver was knowing and voluntary. “[T]rial courts, when alerted by
objection from one of the parties, have an independent duty to ensure that
criminal defendants receive a trial that is fair and does not contravene the
Sixth Amendment.” Wheat, 486 U.S. at 161; see also Holloway, 435 U.S. at 484
(holding that where a probable conflict of interest was brought to the court’s
attention, the trial court deprived defendant of assistance of counsel when
it “failed . . . to take adequate steps to ascertain whether the risk was too
remote to warrant separate counsel”); Glasser, 315 U.S. at 71 (holding it is a
Sixth Amendment violation to appoint counsel to represent multiple
defendants after “the possibility of . . . inconsistent” defenses was “brought
home to the court”).

¶20 The prosecutor’s concerns here placed the trial court on notice
of a possible conflict and triggered the duty of independent inquiry. See
Wood v. Georgia, 450 U.S. 261, 272–73 (1981) (observing that “[a]ny doubt as
to whether the court should have been aware of the problem is dispelled by
the fact that the State raised the conflict problem explicitly and requested
that the court look into it”). That inquiry requires the court to ascertain the
nature of the possible conflict, whether the conflict would prevent the
assertion of credible independent defenses, and whether the defendant was
aware of the conflict risk and its ramifications and nonetheless knowingly
waived the Sixth Amendment right to conflict-free counsel. Id. at 273–74.

¶21 As the Supreme Court has instructed, “[i]n those cases where
the potential conflict is in fact an actual one, only inquiry will enable the
judge to avoid all possibility of reversal by either seeking waiver or
replacing a conflicted attorney.” Mickens v. Taylor, 535 U.S. 162, 173 (2002).
The best way for the court to determine whether a waiver is knowing and
voluntary is to conduct a colloquy with defendants, which trial courts often

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do in other contexts involving waiver of constitutional rights. Cf. State v.
Cornell, 179 Ariz. 314, 323–24 (1994) (involving colloquy with defendant
about the dangers of his decision to represent himself). In the colloquy, the
court should advise defendants of the right to conflict-free counsel, make
defendants aware of the identified conflict, explain possible ramifications
of the conflict, advise defendants of the right to confer about the conflict
with different counsel, and ask if defendants understand the risk and wish
to proceed with counsel regardless.

¶22 Although such a colloquy is not necessary under Arizona law
to establish waiver in every case, it is a prophylactic measure to ensure that
a waiver is knowing and voluntary and thus conforms to the Sixth
Amendment. Indeed, in federal cases, such a colloquy is required in all
cases involving multiple representation, in which the court “must
personally advise each defendant of the right to the effective assistance of
counsel.” Fed. R. Crim. P. 44(c)(2). As the concurring judge in the court of
appeals aptly noted, a colloquy with the defendant offers the added
advantage of avoiding intrusion into the attorney-client relationship or trial
strategy, for it focuses simply on whether the defendant understood the
dangers of joint representation and knowingly and voluntarily waived the
right to conflict-free counsel. Duffy, 247 Ariz. at 551 ¶¶ 43–44 (Eppich, J.,
specially concurring).

¶23 Here, had the court conducted the requisite inquiry, it likely
would have discovered the nature of the conflict and how it would have
adversely affected Duffy. The Supreme Court has noted that “in a case of
joint representation of conflicting interests[,] the evil . . . is in what the
advocate finds himself compelled to refrain from doing.” Holloway, 435 U.S.
at 490. As the court of appeals observed, joint representation prevented
Duffy’s counsel from emphasizing Matias’ involvement in the crime or
exploring a plea bargain for Duffy, possibly in exchange for testimony
against Matias. Duffy, 247 Ariz. at 549–50 ¶ 35; see State v. Martinez-Serna,
166 Ariz. 423, 425–26 (1990) (finding actual conflict where the defendant
“may well have been able to present a more plausible defense but for his
counsel’s conflict,” such as a plea bargain or attempting to place blame on
the co-defendant). Rather, the joint representation forced Duffy to rely on
the implausible theory that both defendants were “set up,” which
contradicted statements Matias made to the police on the night of the arrest

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and other evidence. Duffy, 247 Ariz. at 549 ¶ 35. For that reason, unless
Duffy was aware of the nature of the conflict and yet chose to waive his
right to conflict-free counsel, the joint representation violated that right.

¶24 Based on this record, we cannot conclude that Duffy
knowingly and intelligently waived the right to conflict-free counsel. The
court did not look behind counsel’s assurance that Duffy was advised of the
dangers of joint representation, nor did it take independent steps to satisfy
itself that Duffy chose to waive his rights despite those dangers. This failure
to inquire denied Duffy his Sixth Amendment right to conflict-free counsel.
See Holloway, 435 U.S. at 484 (holding that a court’s failure “to ascertain
whether the risk was too remote to warrant separate counsel” deprives
defendants of the right to counsel); Johnson, 304 U.S. at 465 (“[W]hether
there is a proper waiver should be clearly determined by the trial court[.]”);
Martinez-Serna, 166 Ariz. at 425 (requiring trial court determination of
waiver “in the manner required by Johnson”).

¶25 As the State agrees a conflict exists here, we conclude that the
failure to conduct an inquiry so thoroughly tainted the trial court
proceedings that we must set aside the verdict and remand for a new trial.
Holloway, 435 U.S. at 489 (describing the assistance of counsel as a
fundamental right that is basic to a fair trial); Glasser, 315 U.S. at 76;
Martinez-Serna, 166 Ariz. at 426.

CONCLUSION

¶26 We affirm the decision of the court of appeals, reverse
Duffy’s conviction and sentences, and remand to the trial court for a new
trial.

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