People v. Kenny

T84 duty of as the such of conduct

standard confidentiality, there loyalty or

undivided duty. fiduciary of

was no breach conclude, as did the therefore not fall

court, here did actions that Smith's duty exception fiduciary the breach

within Therefore, he was not American rule.

to the attorney fees. See an award of

entitled Exchange, Insurance v. Farmers

Bernhard Realtor, su Moore & Co. supra; Stevens Faegre & Inc. v. Aspen,

pra; Moguls of

Benson, supra. respects in all affirmed judgment prejudgment calculation

except for the portion of That

interest.

reversed, for cor- is remanded and the cause in accordance with interest of such

rection opinion. The expressed in this

the views affirmed. denying fees is also

order and JUDGE METZGER

JUDGE

PLANK, concur. Colorado, of the State

The PEOPLE

Plaintiff-Appellee, KENNY, Defendant-Appellant.

Robert M.

No. 96CA0840. Appeals, Court of

Colorado 1.

Div. 24, 2000.

Nov. on Denial of

As Modified Rehearing Jan. 2001. Sept. 2001. Denied

Certiorari

738 order appeals the trial court's He also

sault. 85(c) which al- denying motion his Crim.P. assistance leged had received ineffective he judgment of con- affirm the of counsel. We order, viction, and remand vacate the hearing on the Crim.P. for a cause issues. indicated that prosecution's evidence asleep in August the victim was and sexual- was awakened

her bed when she During this by an intruder. ly assaulted husband, incident, from whom the victim's the house. separated, came to she of his truck the victim heard the sound When He driveway, began to scream. she in the into the door and rushed down the broke shouted, bedroom, whereupon the intruder replied, The victim invited me over." "She liar, then you The intruder liar." "You up at a "picked him the victim had claimed house; ran out of the The intruder bar." him, sight of but lost victim's husband chased him. thereafter, shortly police

The arrived her assailant was the victim told them house on the "front man who lived They sum- property" next to her home. that house and defendant from inside moned identify him. asked the victim's husband that, physically, Although defen- he stated assailant, un- he was like" dant "looked positive able to make a identification. make the victim to police The also asked First, said, "I she don't an identification. that, trial she testified at know." defendant, walking away from she as she was him, I know police, "I know that was had told absolutely positive." it. I am he did General, Salazar, Attorney Laurie A. Ken having heard police officer testified to No General, Booras, Attorney Assistant First investigating de- the latter statements. Denver, CO, Plaintiff-Appellee. not report stated the victim could tective's Kaplan, State Public Al- identify David S. Colorado her assailant. defendant as questioned night, that though Defender, Taylor, Deputy defendant Karen N. State CO, charges were filed at Defender, Denver, and no for Defen- he was released Public dant-Appellant. point. incident, days after the defendant A few by Judge METZGER.

Opinion arrested his house. He was moved from returned to Colora- Defendant, Kenny, Island in 1994 and appeals M. the Rhode Robert trial ended a mistri- following a do for trial. His first entered judgment of conviction al, in the convie- trial resulted guilty him second but second jury finding verdict degree as- burglary and first sexual degree here. tions at issue entry same While the findings represented by would have Defendant was interim, useful, at both trials. In the been specific the court did make ref- attorney signed joint petition for his imme holding, erence to the Walker and such refer- ence convincesus that the trial law, suspension practice did not diate from the court and, trial, after defendant's second the attor commit reversible error. clearly The record Mundis, ney shows the trial court considered defendant's was disbarred. (Colo.1996). 929P.2d 1327 motion, written argument conducted oral raised, the facts and issues and evaluated appeal, After defendant commenced this those facts light and issues in perti- request the case was remanded at his for the nent making ruling. law before its trial court to consider his Crim.P. mo- Thus, reject we postconviction upon tion for defendant's contention. relief based alleged ineffectiveness. The trial IL. court denied the motion hearing. without a Defendant next asserts the trial court abused its in denying discretion challenge his DIRECT APPEAL prospective juror for cause to a who had sexually been assaulted as a child. We dis I. agree. Defendant contends the trial court People's We assertion that de committed making reversible error fendant's failure to a peremptory exercise findings concerning of fact the merits of his challenge juror deprives on this him of stand suppress anticipated motion to identifica ing argument. to raise the Morrison v. Peo tions of him the victim and her husband at ple, 19 P.3d 668 trial, disagree. The standard of review of a trial "In evaluating totality of cireum- ruling court's challenge on a for cause to a stances to determine whether there is an prospective juror is whether the trial court independent basis for an in-court identifica discretion, abused its People, Carrillo v. tion, (1) five factors are to be considered: the (Colo.1999), and the entire voir dire opportunity of the witness to view the crimi prospective juror of the must be examined. (2) crime; nal at the time of the the witness' Abbott, (Colo. People See 690 P.2d 1263 (8) degree attention; of accuracy the of the 1984). great We accord deference to the prior (4) description criminal; witness' of the rulings challenges court's for cause certainty the level of demonstrated the because such decisions turn on an assess (5) confrontation; witness at the and the time prospective juror's ment credibility, of the elapsed which has between the crime and the Russo, demeanor, sincerity. People and Walker, People confrontation." (Colo.1986). 7 (Colo.1983). Here, prosecutor, counsel, the defense and that, Defendant's motion asserted because questioned the trial prospective court the the victim and her husband had neither made juror extensively. Although she indicated positive identification at the crime scene past experiences her "very made her sensi- they nor had photographic been shown a assault, tive" to issues of sexual she stated lineup, years and because over seven had fair, "always" that she made an effort to be elapsed offense, since alleged the date of the that she could and would follow the trial "highly prejudicial" it would be to allow the put personal court's instructions and her feel- victim identify and her husband to him at aside, ings require that she would not defen- trial. innocence, prove dant to his and that she guilty. could return a verdict of not hearing, during After a which defense argued applicability counsel the denying In challenge Walk- defense counsel's cause, facts, the trial really court stated: "I er factors to the made the trial court denied the making explicit motion without findings an really get effort. Had she wanted to out on each of those factors. of this she could have said so when I asked

TA4Q prejudicial probative and relative value was the was clear she be fair. It if she could her And even two issues. impact the the evidence will not be disturbed. separate able to of (Colo.1999). child, Dunlap, 975 P.2d experience as a it this though had she's about her words and me in both clear to was its dis that a court abused To show words, she expressed those way that she the evidence, a erroneously admitting cretion and be a fair really put those aside could the court's decision party must show that juror...." unreasonable, manifestly arbitrary, or findings, viewed when The trial court's P.2d Czemerynski, 786 unfair. examination of voir dire light of the entire of dis- juror, no abuse prospective show the pointed Here, questions asked were overruled defense the trial court cretion. that, concerning objection relevant issues of specific and determined and fairness, juror's prospective "marginal probative had bias and while the evidence candid. equally value," give direct and content and were it was relevant answers findings its demonstrate statement that the The trial court's to the assailant's context only spoken up words but "picked of him at a bar." evaluation victim had credibility, pertinent of factors also of say mani- cannot that this decision was We demeanor, appro- sincerity. This was an unreasonable, arbitrary, unfair. festly or discretion, will not priate and we exercise the victim's the medical condition of Since it on review. disturb super- close that he receive son necessitated vision, counteracted and since that evidence IIL. that the victim had statement the assailant's that, argues testi Defendant because bar, evidence was picked up him at a concerning medical condi mony the serious Also, properly court the trial relevant. four-year-old son was the victim's tion of limited weighed probative value of the unduly prejudicial, the trial irrelevant and testimony against possibility of its unfair agree. allowing it. do not court erred prejudice. when it has Evidence is relevant Moreover, jury was instructed any any tendency to make the existence influ- sympathy prejudice nor should neither consequence the determina fact decision, and defendant has not over- ence its probable more or less tion of the action jury that the followed presumption come evi it be without probable than would People Moody, 676 this instruction. See Gibbens, 905 P.2d 604 People v. dence. (Colo.1984). P.2d 691 (Colo.1995). However, relevant evidence Thus, unavailing. argument defendant's probative value is excluded if its be danger substantially outweighed by the Court, People v. District IV. prejudice.

unfair (Colo.1990); 403. Unfair P.2d 141 CRE 785 that, be Defendant next contends tendency on the prejudice to an undue refers a fair denied his to cause the trial court suggest to the part evidence to of admissible not, motion, prohibiting by trial on its own decision. Peo jury improper an basis for its giving nonresponsive an the victim from (Colo.1999). Nuanez, 1260 ple v. 973 P.2d counsel, questions from rever swers to both with broad Trial courts are vested required. sal is evidentiary rulings. making discretion (Colo.1998). However, Ibarra, prejudice which ac People v. 849 P.2d 33 nonresponsive may be review, a answer give the evidence the crue from we must On disregard to cured the court's instruction probative value attributable a maximum Carr, objectionable portion. People v. minimum un fact and reasonable finder (Colo.App.1975)(notselected for P.2d 104 reasonably expected. prejudice fair to be Gibbens, supra. Absent an abuse People v. publication). an official Such instruction here, discretion, no indica ruling concerning given and the record contains court's jury tion the did not follow that directive. because the references were iso- lated, say we cannot that the statements Consequently, required. is not reversal pervasive so plain

were as to constitute er- ror. V. prosecu-

Defendant asserts several of the C. during closing argument, tor's statements individually cumulatively, require taken Defendant maintains reversal is re reversal agree. of his conviction. We do not because, quired closing in rebuttal argument, prosecutor portion characterized a of de When, here, as a defendant does not closing argument fense counsel's as a "smoke object trial, prosecutor's to comments at we disagree. screen." We plain review the statements under a error Foster, standard. See Prosecutors are allowed considera is, (Colo.App.1998). That we assess responding ble latitude in to defense coun whether the comments so affected the funda arguments. People sel's Vialpando, mental fairness of the trial as to cast serious (Colo. App.1990). reliability judgment doubt on the of the People, conviction. Walker Here, argued defense counsel that the vie- tim's husband had not looked at other houses try in the area to to find the assailant. The A. prosecutor replied argument that that was a "smokesereen." argues prosecutor Defendant inappropriate made numerous references to response This require does not reversal. the medical condition of the victim's son in a manner sympathy calculated to evoke for the D. engender victim and to ill-will towards defen disagree. dant. We prosecutor's concluding state ment you bring justice was: "And we ask These references were few number and people [the victim] and the of the State of special require- centered around the care Colorado, [eluding] that has all of us been daily ments of the child and his routine. August since of 1988." argues Defendant Moreover, closing argument, rebuttal improper appeal this comment was an to the prosecutor jury told the this medical jury community to consider the wishes of the condition had "limited relevance." and, such, requires as it reversal. We do not say We cannot these comments cast seri- agree that reversal is warranted. reliability ous doubt on the Although prosecutor's in remark was and, thus, of conviction we improperly advisable because it referred to assertion. community, the wishes of the see Wilson v. (Colo.1987)(fn.8) People, 743 P.2d 415 B. arguably injected improperly prosecu Defendant also maintains personal opinion case, tor's into the see prosecutor's "every statements that fox will A.B.A., Standards Criminal Justice Stan for house," way get find a to into the hen and the (1998 ed.), dard 3-5.8 it did not undermine reference to defendant's home as his "lair" the fundamental fairness of the trial. There require dehumanized him and reversal. We fore, plain it did not constitute error. See find no basis for reversal. Simbolo, 49, People v. 188 Colo. 532 P.2d 962 Because these statements diverted the (1975); Hernandez, People supra. v. focus, jury's proper denigrated defendant's status, dignity human and diluted the of the E. role, proceedings prosecutor's proper and the they improper. People were See v. Hernan prose While we do not condone dez, (Colo.App.1991). rhetoric, cutor's sometimes overzealous we

742 that principle applied in such cases is "The statements, taken that are not convinced practice to law and there never admitted the fundamental one cumulatively, affected so quali acquired never the threshold fore who to cast serious trial as fairness of defendant's represent a in court cannot reliability of fication to client of doubt on the Jones, so, matter how allowed to do and no People v. be conviction. See ensue, Thus, performance it will spectacular we defen a (Colo.App.1991). 1036 representation effective of cumulative error neces not constitute argument that dant's purposes of the Amend counsel for Sixth sitates reversal. Mouzin, v. 785 F.2d ment." United States Cir.1986). P. (9th CRIM. 682,697 VI. many spectrum, end of the At the other appeal regard In to defendant's have refused to reverse a defendant's courts 85(c) motion, we con- his solely denial of Crim.P. because the conviction representa fully licensed at the time of proceedings required. are not that further clude (3d Lehman, v. 64 F.3d 119 tion. See Vance A. Green, 15, Cir.1995); N.J.Super. v. 274 State (1994). underlying A.2d 18 The rationale 643 area that must be addressed One that, lawyer a must cases is because these it was remand is defendant's assertion specialized knowledge inherent possess trial the trial court to rule error for law, by practice demonstrated hav as after be counsel's continued representation, necessary ing obtained the educational law, practice did ing suspended from licensure, prerequisites a for examination assistance of coun not constitute ineffective not, full, by lack of current licensure does sel, law. as a matter of itself, thresh demonstrate the absence of the have a constitutional Defendants qualifications guaranteed the Sixth old counsel. right the effective assistance of to Allen, supra. Amendment. Generally, requires a defendant to es this instances, have a sub In some courts used representation was de tablish that counsel's analysis. in their distinction stantive/technical probability ex and that a reasonable ficient Thus, attorney's full example, if an loss of that, unprofessional for counsel's isted but from a technical cireum- licensure resulted errors, have the result of the would register as failure to with the stance such Washington, been different. Strickland Overseers, Bar Board of Commonwealth 2052, L.Ed.2d 674 466 U.S. S.Ct. Thomas, Mass. 503 N.E.2d 456 (Colo. (1984); Davis, (1987), or failure to take the oath of admis App.1988). graduation law school and sion after from instances, However, in a defendant some examination, the bar see Wilson v. passage of prove that required to meet this test to (Colo.1982), the Sixth People, 652 P.2d 595 right Amendment to counsel his or her Sixth implicated. Amendment's concerns were not Zitter, Annotation, was violated. See J. Conversely, most courts have found denial Representation By Criminal Defendant's to counsel if of the Sixth Amendment Practice Law as Person not Licensed to Vio- full resulted from cir the loss of licensure Counsel, Right 19 A.L.R. 5th 351 lation evidenced cumstances which unfitness (1994). representation if practice law and that, instance, uniformly hold if For cases State v. of the defendant was deficient. See represented laya defendant imposter, Mitchell, Green, supra; People 454 Mich. i.e., lawyer to be a but who is one who claims (1997). 145, 560 N.W.2d 600 not, deprived then such defendant has been reject contention that a We right This is of the constitutional to counsel. apply rule here. As the Su- per se should per rule of ineffectiveness. known as the se preme expressed: has Court (2d States, 709 F.2d 160 v. United See Solina Cir.1983); Allen, Ill.App.3d 220 People v. designed are to avoid [Per rules] se (1991). 772, 872, N.E.2d 1291 inquiry per 162 Ill.Dec. 580 a se of excessive where costs

743 Dodd, S$.E.2d 411, achieve the correct in al- rule will result Cornwell v. 270 Ga. 509 (1999); Thibeault, se most all cases.... Per rules should 919 Commonwealth v. 28 however, 787, Mass.App.Ct. (1990); in applied, situations where 556 be N.E.2d 408 Pubrat, generalization empir- People 589, is incorrect as an 451 Mich. 548 NW .2d (1996); Smith, 595 State v. matter; 476 511 justification NW.2d ical for a conclu- (Minn.1991); Green, presumption disappears applica- supro; sive when State v. Allen, presumption Allen, supro; tion of the will not reach the State 121 Ohio correct result most of the time. 666, (1997); App.3d 700 N.E.2d 682 State v. Johnson, 162, (1936); 64 S.D. 265 N.W. 599 722, 787, Thompson, 501 111 Colemam U.S. State, (Tex.Crim. Cantu v. 9830 594 SW.2d 640, (1991). 2546,2558, S.Ct. 115L.Ed.2d 648 ~ App.1996). Thus, per may appropriate in a se rule be represented defendants are situations where agree with these latter courts by masqueraders mini- who have not met the that, attorney if fully hold an than less bar, requirements mal for admission to the licensed, the Sixth Amendment's concerns a because such rule would reach the correct by applying are case-by-case best satisfied a ensuring require- result of the minimum . approach. We also the technical/sub ments of the Sixth Amendment to coun- dispositive stantive distinction because the sel almost all of the time. attorney's issue is the effectiveness as coun application per same cannot be said for of a sel, rather than the nomenclature to used properly se rule situations where licensed disciplinary proceedings. describe the attorneys suspended have been or disbarred. Pubrat, explained As the court in People v. 599, Suspension swpora, or disbarment can result Mich. at 548 N.W.2d at 597: from ethical other misconduct or bad behav Either administrative or substantive disci- necessarily ior that does not a indicate lack pline may attorney's profes- reflect on an Johnson, knowledge of the law. In re competency, may sional and either also Cal.Rptr.2d Cal.4th shortcomings reflect purely per- that are (1992). Thus, the per rationale for a se rule example, sonal. For pay failure to bar vitality. such cireumstances loses its may dues an be intentional violation of the attorney rule which demonstrates that the suspension While or disbarment can also proper weight does not accord to the rules. professional incompetence result from be possibility That failure also raise the range cause of the wide of conduct that can attorney neglect that an will a client's in- labeled, be so several courts have refused to attorney terests as well because the adopt per a se rule of In ineffectiveness. unwilling keep unable or track of obli- deed, many apply federal courts refuse to a Thus, gations. discipline administrative per though attorney se rule even had lost attorney's reflect an fitness to predicate his or her license bar state law, practice discipline while substantive relating competence. for reasons always professional will not demonstrate (5th McKinney, United States v. 53 F.3d 664 incompetence. example, For an assaultive Cir.1995). Instead, those courts examine the offense committed an reveals quality attorney's representation of the flaws, personal necessarily but does not Lehman, supra; defendant. See Vance v. attorney's professional reflect on the ca- Stevens, (10th United States 978 F.2d 565 pacities. Cir.1992); Rodriguez, Waterhouse v. (2d Cir.1988); P2d 875 United States v. adopt ask that we Mouzin, Merritt, supra; United States v. intermediate test set out the Texas Court (7th Cir.1976). 528 F.2d 650 State, Appeals in supra. of Criminal Cantu v. rejécted case, Many state per adopted courts have also In that the court a multi-fac- rule of adopted analysis se ineffectiveness and have tored to determine the rea whether case-by-case approach determining attorney's discipline for an sons reflect so poorly upon attorney's competence whether the loss of full licensure renders an that it may reasonably be inferred that the defen attorney ineffective as a matter of law. See may changed previous request, he since his rights were violated Amendment dant's Sixth supreme court for access People's again petition the grant the matter of law. We as a court, to that file. the recognizing, as did Cantu request, totally separate from the inquiry is that this hearing Following the and after evaluation Washington, supra, Strickland traditional light in of what it deems to be of the evidence since, be is found to analysis if trial counsel factors, if the trial court deter- the relevant law, is no matter of there incompetent as a incompetent was as a mines that trial counsel prejudice inquire into trial errors or need to law, it must vacate defendant's matter of trial for entitled to a new and defendant and schedule a new of conviction alone. this reason Conversely, if the trial court deter- trial. incompetent trial counsel was not mines that enumerated several court Cantu law, no new trial need be held as a matter of necessarily limited including, not but factors However, event, in either for that reason. "(1) severity (suspension of the sanction to: evidence, hear trial court should take the (2) disbarment; length suspension), of versus findings argument, and conclusions and make (8) discipline, whether the for the the reasons remaining concerning this issue and the is- inci upon an isolated discipline was based 35(c) mo- in defendant's Crim.P. sues raised (4) conduct, similarities pattern dent or tion. resulting in type proceeding the between ques type proceeding in discipline and the B. (5) tion, of conduct similarities between kinds Amend- Defendant next contends his Sixth attorney's discipline any resulting in the and because right ment to counsel was violated in attorney the had responsibilities or duties in that had a conflict of interest counsel proceeding question, in connection with the pending relative to the his own interests (6) the conduct temporal proximity between proceedings with his disciplined and disciplinary interfered the for which representation of defendant. We conclude (7) na proceeding question, and the proceedings required on this that further are attorney's professional ture and extent of the matter as well. accomplishments." experience Cantu and State, at 602-603. supra, 930 S.W.2d A interest is defined as: conflictof (b) represent if lawyer A shall not a client of the relevant factors neces Evaluation representation of that client be inquiry. sarily requires a fact-intensive Con materially by lawyer's responsi- limited should sequently, defendant and per- to another client or to a third bilities present evi opportunity to their have the interests, son, un- by lawyer's own or arguments concerning these fac dence less: what, any, if argue other factors tors and (1) lawyer reasonably rep- appropriate for consideration. believes

would be Cf. affected; Keohane, adversely Thompson v. 116 S.Ct. resentation will not be U.S. (1995). . 133L.Ed.2d 383 (Z2)the client consents after consulta- Here, conduct a the trial court did not tion.... hearing motion. on defendant's Crim.P. (c) Rule, purposes of this a client's For the request hearing because of It refused the validly cannot be obtained those consent holding inquiry "the should focus on its lawyer instances in which a disinterested performance." lawyer's actual would conclude that the client should State, adoption of the test in Cantu v. our agree representation under the cir- to the hearing supra, that a be held. necessitates particular situation. cumstances argument that he of Professional Conduct 1.7. Colorado Rules access to the file of the should be allowed ability represent prosecutor relating to trial coun- If trial counsel's disciplinary materially by proceedings a defendarit limited his or discipline because earlier sel's interests, case, her a defendant be de regarding supreme court own this representation requesting prived of the to effective defendant's motion order denied Edebohls, ruling. of counsel. must abide that access. We (Colo.App.1996). have If believes the cireumstances defendant

745 Normally, A defendant bears the burden of the conflict of interest issue demonstrating actively repre that counsel arises either during before or trial. Court, Rodriguez v. District supra; People v. interests, conflicting and sented that an actu Castro, supra; Armstrong People, v. 701 adversely al interest conflict of affected coun Sullivan, performance. Cuyler (Colo.1985); Martinez, sel's v. 446 People v. su instances, 100 64 pra. U.S. S.Ct. L.Ed.2d 333 In appellate those courts analyzed have the trial court's advisement to (1980). point specific must in Defendant the defendant to ascertain whether defen suggest record to im stances the actual interest,. pairment of his voluntary, UnmitedStates v. dant's waiver of the conflict was knowing, Then, (11th Cir.1990). intelligent. they and Khoury, F.2d have engaged in balancing a test to determine specifically, "More the defendant must identi whether, under the fy something that counsel chose to do or not presented, cireumstances public integrity judi confidencein the do, duties, conflicting as to which he had and process outweighed cial in defendant's must show that the course taken influ was being represented terest at trial a Lehman, enced that conflict." Vance particular attorney whose effectiveness supra, 64 F.3d at 124. impaired by have been the existence of a burden, If a defendant meets this Rodriguez conflict of interest. v. District requisite degree prejudice is estab Court, Castro, supra; People v. supra. lished and he or she does not have to demon Both People defendant and the have asked strate that the result of the trial would have that we remand the case for the trial court to been different without the conflict. Strick findings make of fact and enter conclusions Washington, supra. land grant law the waiver issue. We those In the a defendant event establishes that requests and remand cause for the trial actively represented conflicting trial counsel and, hearing court to conduct a in the exer- interests and that that conflict of interest discretion, Martinez, cise its conduct, adversely affected trial counsel's supra, findings to make of fact and enter remedy normally would be a vacation of the conclusions of law on conflict of interest judgment grant of conviction and the of a and waiver issues. However, here, significant ques- new trial. a If the trial court determines a conflict of tion remains whether defendant knew of trial interest existed and that the conflict adverse- and, suspension knowing of such conduct, ly affected trial counsel's and if the suspension, any waived claim of conflict of voluntarily, court determines that defendant interest. knowingly, intelligently right and waived his A generally right defendant has representation, to conflict-free then defen- argument Similarly, dant's fail. must if the conflict-free assistance of counsel. Rodr Court, (Colo. iguez v. District 719 P.2d 699 court determines that no such conflict of 1986). However, existed, although a defendant interest the same result would ob- tain. if the trial court assert that he or she received ineffective determines that a assistance of conflict of interest existed and that counsel when counsel has been interest, voluntarily, defendant it did not waive know- found to have a conflict of ineffec ingly, intelligently, tive assistance will not be found if the defen right dant repre waived to conflict-free of conviction vacated and a must be new trial should be conducted. if sentation and that waiver made with knowledge full of the actual conflict. C. Castro, (Colo.1983). 657 P.2d Finally, defendant contends the trial prosecution bears the burden of 85(c) denying court erred in mo his Crim.P. establishing that the defendant was aware of conducting tion on the without merits hear voluntarily, the conflict and thereafter know ing. agree hearing should be held. ingly, intelligently relinquished representation. People to conflict-free A defendant should receive a hear Martinez, ing on his or her Crim.P. motion unless files, concerning assistance of counsel motion, of the case ineffective and record counsel should not or waiver of conflict free defendant's claims clearly that establish I reach this conclu be considered further. v. Denver District merit. White are without upon the invited error doctrine. sion based Count, provides party may not doctrine that a This facts motion asserted Because defendant's any appeal on error that he has invit assert that trial counsel's have showed

which injected Zapata, into the case. v. ed or which the norm and actions fell below (Colo.1989). This doctrine 7 trial, see have altered the outcome especially party when that is applicable is supra, Washington, Strickland error, injecting preserve seeking, by to Davis, the trial court supra, and because trial if the result to second performance counsel's not examine trial did satisfactory. first is not See Hansen State scrutiny required by heightened under Co., Farm Mutual Automobile Insurance the conflict of analyses out here on set (Colo.1998); Morgan County P.2d 1380 representation ineffective per interest and se J.A.C., 791 Department Social Services v. hearing issues, that should we conclude (Colo.App.1989). opportunity for defendant encompass an hand, If, the court determines on the other argument on his asser- present evidence and in fact unaware of trial that defendant was of ineffective assistance. tions status, agree then I would affirmed, judgment of is conviction performance of counsel's under assessment vacated, is remanded and the cause order is State, the test set forth Cantu 85(c) hearing defendant's Crim.P. for a (Tex.Crim.App.1996) appropri S.W.2d 594 motion. remaining ate as the consideration of the in the Crim.P. motion. issues raised

NIETO, J., concurs RULAND, J., specially concurs. specially concurring.

Judge RULAND in Part I

I in the reached concur result majority opinion. separately I rel- write HEATH; Steen; Mark Mi Vida Mark P. opinion because I ative to Part II of the Enterprises, Inc.; Cross Pros Southern be addressed is the threshold issue to believe Mining pecting Company; Reef Gold knowledge concerning repre- his Avanti; Virginia Company; Deepika attorney. by suspended sentation Fledderjohn; Erickson; Avan J. Gordon support to remand the In of its motion Family Partnership; Richard ti Limited findings, the Heard; Mining Compa case to the trial court for factual T. Rex Gold prosecution attached an affidavit defen- ny, Plaintiffs-Appellants, trial counsel in which he states dant's former my Kenny that: "Mr. was aware license Douglas and the Board of G. PARKER suspension practice law was under County of Boulder Commissioners Kenny He states: "Mr. second trial." also County, Defendants-Appellees. my representation preferred to risk even No. 99CA2436. perti- though suspension." I As was under here, Kenny finally "Mr. nent he states that: Appeals, Colorado Court of possible consequence of was aware that one Div. II.

my representation the second would 24, Nov. 2000. my get trial due to be that he could another As Modified on Denial of misconduct." Rehearing Jan. 2001. disputes the recognize I that defendant Sept. Denied 2001. Certiorari if, credibility af- of this affidavit. evidentiary hearing, the trial court ter an of the affidavit

determines that the contents accurate, my then in view the issues

are

Case Details

Case Name: People v. Kenny

Court Name: Colorado Court of Appeals

Date Published: Jan 25, 2001

Citation: 30 P.3d 734

Docket Number: 96CA0840

Court Abbreviation: Colo. Ct. App.