Roles v. State

triаl, jury a waiver of stituted SHEPARD, Before BAKES and BIST- him, confront witnesses and the LINE, JJ., HARGRAVES, MAYNARD and privilege against self incrimination. The JJ. Pro Tem. of interest question that a conflict was Roles’ counsel as a result of faced PER CURIAM: representing both Roles and petitioner The appellant Raymond Allen the co-defendant was not raised petition post Roles filed a for conviction court, Rоles, attorney prior byor relief after a of conviction on post conviction relief petitioning Roles’ felony charge receiving property. stolen Septem- judgment of conviction in from the subsequent In a prosecution, this conviction ber, 1977. persistent was used to establish violation appointed attorney single A court petitioner appellant. status on conflicting interests of represent cannot challenged In the conviction a co-defend- multiple charged with the same ant, Marineau, charged burglary. with States, 315 U.S. crime. Glasser United represented by Both defendants were (1942); 86 L.Ed. 680 S.Ct. attorney. Roles con- court-appointed Oldham, 124, 438 P.2d 275 92 Idaho post conviction petition tended in his (1968). of the United Supreme The the effective as- relief that he was denied recently that a criminal convic States held counsel, guaranteed by sistance subject reversal where the trial tion is sixth to the United States Con- amendment improperly required stitution, of the trial court’s result timely objection of the defendant. tion over single attorney for both appointment of a Arkansas, 435 Holloway v. his co-defendant. himself and (1978). The court in however, “[Requiring that Holloway, record in this case indicates that stated permitting single attorney represent charged Roles and his co-defendant were in or codefendants, counsel, appointed guilty plea prevented rep- often referred to as resentation, is se per materializing. violative consti- Joint from ever guаrantees tutional assistance not of representation of co-defendants does of counsel.” 435 at 98 S.Ct. at of a defend- itself denial criminal constitute 1178, 55 L.Ed.2d at 433. Holloway to effective counsel. Arkansas, supra. In Holloway persisted the trial court in requiring public the represent defender to found, Roles denying The trial court three despite co-defendants the counsel’s post relief, plea of conviction that Roles’ objection that multiple defense confront- January guilty was know- made ed him conflicting interests, with making it ingly voluntarily made and that Roles impossible for provide him to effective as- plea. the undérstood the sistance for each client at trial. The de- result, plea As a the found that the court fense Holloway prior counsel in moved to Colyer, was valid. State v. Idaho appointment trial separate for counsel (1976); P.2d Monneyham, “on grounds the one or that two of the (1974); Idaho P.2d 340 I.C.R. do, may defendants and if testify they then showing trial There was no that Roles’ I will be not able to cross examine them guilty plea counsel recommended because I have received confidential infor- of inter- in order to avoid conflict mation Supreme from them.” The problem est would which have conviction, reversed the hold- presented trial and proceeded had Roles to ing that where the properly defense counsel the state called Roles’ co-defendant as a ‍‌‌​​​‌​​​‌‌‌​‌​​​​‌‌‌‌​​​​​​‌​‌​‌‌‌​​​​​​‌‌‌​​‌​‍problem interest, raised the aof conflict of witness in its case in chief. Absent a show- in failing erred to make ing thаt there was at least a con- inquiry to determine appoint- whether the flict of between the interest co-defendants separate ment of necessary counsel was joint representation at the the existed time the case to assure the that defendants re- which may inhibited the adequate ceived ability for of each to act the best interests Defеndant Roles here asserts that during repre- at all times co-defendant that because was likely it that his co-defendant sentation, there is no basis for defend- the testify against him at trial if he right that claim his sixth amendment pleaded guilty the charges to abridged. counsel was Under him, there was a interest be case, the circumstances of defendant co-defendant, tween Rolеs and making his Roles shown counsel has not that the representation of the two co-de faced a conflict of interest as a result fendants a basis for reversal of Roles’ con joint representation of the two co-defend- viction. while an actual conflict ants.1 might interest have occurred if Roles had proceeded to trial his original with court Affirmed. lawyers practice

1. Both counsel and the trial court must or who are associated in problems presented by joint sensitive to the representation should not undertake to defend more than one the criminal case if co-defendants and take an may duty the flict to one of the con- defendants active role to assure that the duty potential anothеr. with deprive tion does a defendant his or her representing for conflict of interest multi- to effective counsel. The ple grave ordinarily defendants is so that Relating Bar American Association Standards lawyer to act more than decline for place to the Administration of Criminal Justice except one of several usual in un- co-defendants responsibility on both the trial court coun when, investiga- after careful situations sel to assure that a defendant’s to counsel tion, likely clear it is that no conflict is impaired is not a conflict of interest. develop and when several Relating The ABA Standards to the Defense give representation. multiple an informed consent such Function, 3.5(b) Draft, 1971), (Approved pro- § instances, some vides as follows: Responsi- defined in the Code of Professional preliminary “Except matters such as ini- bility, accepting employment continuing or hearings bail, applications lawyer tial by more than one defendant in the same even, plea BISTLINE, Justice, dissenting. guilty against the testify agreement, consent to is pleaded guilty It true that Roles Moreover, very fact co-defendant. equally post-conviction pro- true that in the impossi- makes it multiple representation ceedings found that his state- the accused that ble assure But, knowingly was made. in full lawyer ments necessarily does it follow therefrom that necessarily confidence. Defense was pertinent there not at times a conflict any conflicting each with confront arising representation? out the dual in the made statements Roles asserts that his was in- planning the defense course of Marineau, duced the fact charged he find that cases. In this situation Roles, on the same information with clients to determine ‘judge’ he must pleading testify and would truth, telling and his role as poten- opinion only him. The a Court’s sees inevitably would be undermined advocate interest, tо tial conflict of which failed ma- to one not both defendants.” if guilty plea, Roles terialize when entered his ABA, to Relating the Defense Standards emphasizes showing and that there was “no Draft, 1971), at 213- (Approved Function a that Roles’ trial counsel recommended 214. charge the in to to order avoid out, gone Roles had case to points As the problem conflict оf . . . .” interest trial, defending Roles trial counsel reasoning faulty begs very Such is and the to discredit obligated attempt been to have presented. question Obviously trial counsel Marineau. thing, wouldn’t such a and it has not do here, too, the that Roles Important is fact suggested been at all. Trial counsel did independently retain did not Marineau have to two whose interests advise cliеnts attorney; situation arose out the same the were not is not the same. It reasonable to be appointment. Roles cannot could, justice believe that trial counsel to knowing at time that he faulted not the clients, encourage both or one to advise being position, cast was thus in a difficult plead guilty testify whatever ben- —for at for his might and which not be all own might dоing efit flow from so re- —without good. alizing the probability that the other’s case might prejudiced. be thereby The commen- should be set The of conviction 3.5(b) tary to of the A.B.A. § Standards to withdraw aside and Roles allowed explains: charge Criminal Justice the guilty, and stand on “ ** * Doing imposes a small so but against him. many instances on and secures to Roles burden the State advantageous to may course of action be rights. constitutional necessarily but one the defendants not prosecutor the may to other. The of the Court’s I dissent also reason accept guilty plea inclined to from one guidelines, not- positive failure set down co-defendants, to a of the either lesser as well the defendant ing that the State or penalty offense with a lesser other or requested that we do so. has considerations; harm but the applicable the stan- does call attention to Association, defendant. The interests American Bar dards the dispositions responsibility contrast in the of their cases on the trial place both impact a harmful re- assure that a defend- have court and counsel to defendant; pleads assist- maining who one consolidated, represented by unprofessional have been criminal case will constitute attorney, judge in- the same conduct.” may jeop- Relating quire potential conflicts which The ABA Standards to the Function into Draft, Judge, 3.4(b) (Approved each defendant ardize the Trial § fidelity 1972), provides: of his counsel.” two more defendants who “Whenever or jointly charged, whose cases or opposition impaired anee force dual in full so in gra- but does a wholly often substan- partially, and must be tuitous Recently manner. the Minnesota in a constant concern tially, diffused Supreme Court, hearing chal- similar harm each ma- calculate lenge representation of co-defend- co-defend- might work on the neuver ants attorney, compelled felt choose, com- pick, must ant. Counsel “to adoption announce the procedures attacks be- promise forego various Olsen, limit its abuses.” State v. repercus- of the threat of adverse cause (Minn.1977). court, too, N.W.2d 898 That the co-defend- to the interests of sions mentioned the A.B.A. standards after not- from the thereby prevented He is ant. ing that years five earlier only gone it had legal weapons of all the use so far as to “strong disapproval indicate Note, armory.’ 254. 23 Ark.L.Rev. representations.” dual Id. at “Thus, on occasion the explain court went on reasoning its added to the tion of codefendants has declare safeguards: defense of a criminal the addition “The difficulty inhеrent any which faces possibility of inconsistent al burden attorney who joint repre- undertakes the White, Commonwealth pleas,6[See sentation of codefendants he is that (one Pa.Super. (1969) 252 A.2d she simultaneously balance the in- charges denied all while two codefendant terests of each defendant each pled others to several other. only Not must the alibis,7 charges).] factually inconsistent against codefendants prosecu- defend 184, 116 People Bopp, v. 279 Ill. N.E. [See tion, but he or she must also defend (one (1917) might disprove alibi 679 against conflicts between the defendants [See, other).] testimony,8 conflicts in Saw aptly explained themselves. As one (4 yer Brough, 1966) 70 v. 358 F.2d Cir. commentator: (one guilt “ codefendant denied and ac ‘The interеsts and defenses of co- crime). cused codefendant of But other rule, are, general defendants as a an- see, Tahash, g., ex v. e. State rel. Knott and, tagonistic; joint the fact of 305, (1968) 281 Minn. 161 N.W.2d 617 a strong likelihood (both adopted defendants version of arises that a conflict en- exists or will another); implicating crime without one difficulty sue. The a inherent in such Robinson, 477, v. 271 Minn. 136 State single situation attorney is that denied, 401, 382 N.W.2d certiorari steer simultaneously the defenses of 948, 410, (1965) 15 356 86 S.Ct. each on proper defendant there- course (both defendants ‍‌‌​​​‌​​​‌‌‌​‌​​​​‌‌‌‌​​​​​​‌​‌​‌‌‌​​​​​​‌‌‌​​‌​‍attributed crime to by wasting much of his court- valuable person).] degree third of differences room pre- on the concentration task of crime,9 People involvement in the v. [See venting scrapes and collisiоns between 794, Keesee, Cal.App.2d Cal.Rptr. 250 58 multi-client interests. long- He can no (1967) (defense compared 780 counsel er freely decide what will be most ad- strength against defendant). of case each

vantageous for the defense of one see, Tahash, But ex v. State rel. Knott client without weighing against first it supra (isolated statement counsel to the disadvantages thаt might conse- the effect that of one code quently must, involvement accrue to the other. He short, was not or as fendant as extreme serious temper his strategy to a mid- position. other codefendant because dle-of-the-road This condi- tion, course, imposes previous other rec an codefendant’s artificial approach ord).] evidеnce,10 strained on singular tactical admission of prevents 757, which him [See, from v. N.M. developing Tapia, 75 411 full, aggressive strategy. (1966) (statement by defensive P.2d 234 codefend The shattering impact of tech- ant).] calling skilled and crossexamination nique ordinarily impeachment witnesses,11 could be leveled [See, 722 “ ‘ * ** States,

Lollar U.S.App.D.C. v. United 126 An individual (1967) enough to evalu- 376 F.2d 243 (summoning rarely sophisticated conflicts, when See, also, potential ate testify). codefendant Bruton single with a appeal two defendants States, v. United 391 88 determined, ab- attorney it cannot (1968) (use joint 20 L.Ed.2d 476 at a judge, whether inquiry by sent confession made one of de apprais- an has made such fendants held to violate the confrontation the risks. al his clients of or has advised rights implicated defendant because he * * * every rea- indulge We must could not cross-examine the codefendant the waiver against sonable presumption not testifying).] strategy in final ‍‌‌​​​‌​​​‌‌‌​‌​​​​‌‌‌‌​​​​​​‌​‌​‌‌‌​​​​​​‌‌‌​​‌​‍sum counsel. unimpaired assistance of Keesee, [See, People supra mation.12 v. * * *.’ Glasser v. United States (defense attorney called evidence “Thus, recognizing the desira- courts stronger one codefendant than bility requiring the trial court to act See, codefendant).] generally, whether multi- affirmatively to ascertain Kirwin, Pirsig Responsibil & Professional single ple represented (3 ed.) 389; ity pp. Annotation, 386 to 34 of con- cognizant counsel are of the risks addition, A.L.R.3d 470. courts have whether, light of interests and flicts intangible alluded to such factors as the risks, they those still wish to maintain added possibility guilt by association.13 their common Unit- See [See, Prince, People v. Cal.App.2d 268 Garcia, (5th ed v. 517 F.2d 275 States 398, 74 Cal.Rptr. (1968) (codefendant 197 1975); Cir. United ex rel. Hart v. States acknowledged prior felony convic Davenport, (3rd 478 F.2d 211 Cir. tion); People Perry, 242 Cal.App.2d 1973); Foster, United 469 F.2d States (1966) 51 Cal.Rptr. (general 740 guilt (1st 1972); Cir. Lollar v. United by association).] States, App.D.C. [U.S.] express “We must again disapprov our (1967); Campbell F.2d v. United al representation again stress States, App.D.C. [U.S.] dangers attendant it adds to effective 360; 359, State, F.2d Wall v. 214 So.2d representation by At counsel. the same 384, (‘[I]t (Fla.Dist.Ct.App.1968) 385 time, we recognize rep that the effective practice would be for the trial sound counsel, by though resentation a constitu warning judge give a Miranda -like tional may be waived. v. Glasser possibility about the that inconsistent de- States, 60, 70, United 315 62 U.S. S.Ct. fenses, tactics evidence or trial ; 457, 465, 680, 86 L.Ed. Faretta v. jointly represented prejudice defendants 699 * * California, 806, 2525, 422 95 45 U.S. S.Ct. see, *.’). v. But United States (1975). L.Ed.2d 562 requires Waiver Mandell, 671, 1975), (7 677 525 F.2d Cir. ‘intentional relinquishment denied, 1049, or abandon certiorari 423 96 S.Ct. U.S. ment of a right.’ (1976) (primary known Johnson v. re- 46 L.Ed.2d 637 Zerbst, 458, 464, attorney). 304 sponsibility 58 S.Ct. must lie with (1938). is, 82 L.Ed. 1466 approach “The most definitive has been only vоluntary, valid waivers not must be Appeals for the by taken the Court of Garcia, ‘knowing intelligent but also must be acts Fifth Circuit in United States v. which, analogizing done with sufficient awareness of the rel a defendant’s supra, likely attorney’s possible evant of his conflict circumstances and conse waiver States, require- procedural of interest quences.’ Brady v. 397 United plea of 1463, 1469, ments аttendant to a defendant’s 25 guilty, stated: (1970). ‘“ * * * * * * Appeals noted by the Court of for the Campbell person- District of Columbia Circuit should address each defendant States, App.D.C. v. ally forthrightly United advise him (1965): potential dangers representation F.2d The defendant counsel with dual a conflict of interest. The liberty ques- opportunity must be at and be at have an should * * * tion the court as to the nа- the trial court on the liberty question consequences ture and legal rep- of his repre- of dual nature and resentation. significantly, Most procedure entire sentation and the court should seek to elicit a narrative the record for review. placed on response from each defendant that he satisfactory inquiry ap- When does has been advised of his effec- record, pear burden shifts to on the tive that he under- beyond a reason- state demonstrate stands the details of his pos- prejudicial able doubt that a sible conflict poten- of interest and the See, interests did not exist. Lollar v. conflict, tial perils of such a that he has States, App.D.C. United 126 [U.S.] discussed the matter with (1967). 376 F.2d 243 counsel, or if he wishes with outside “The trial court is reversed and the that he waives his case remanded for a new trial.” * * protections. Sixth Amendment Olsen, 258 N.W.2d 904-908 is, course, It vital that the waiver be (some omitted, (Minn.1977) others footnotes “clear, unequivocal, established text). ‍‌‌​​​‌​​​‌‌‌​‌​​​​‌‌‌‌​​​​​​‌​‌​‌‌‌​​​​​​‌‌‌​​‌​‍* * * inserted in unambiguous language.” procedures the Minnesota response Mere assent in directed to a series of sound, questions court are and I can sеe no reason for from the bench in some hesitancy to follow adequate circumstances constitute an this Court waiver, but suit. the court should nonethe-

less endeavor to have each defendant

personally articulate in detail his intent forego significant

protection. Recordation of the waiver

colloquy between defendant judge

will government’s also serve the inter-

est assisting shielding any poten- attack, tial conviction from collateral 604 P.2d 737 grounds either on Sixth Amendment Idaho, Plaintiff-Respondent, STATE of on a Fifth or Fourteenth Amendment “fundamental fairness” basis.’ “We adoption proce- believe the of such a DILLON, Gregory Defendant-Appellant. safeguard

dure in this state would No. 13050. rights of defendants under both the Fed- eral and state constitutions and also serve Supreme Court of Idaho. promoting judi- ‍‌‌​​​‌​​​‌‌‌​‌​​​​‌‌‌‌​​​​​​‌​‌​‌‌‌​​​​​​‌‌‌​​‌​‍a means of cial by providing administration a mean- Dec. ingful independent upon basis appellate the trial or make an

independent assessment of the voluntari-

ness of right. the waiver of such a

Therefore, we require the use of procedure

such a commencing for trials publication

after the opinion. date of this

The defendant must and with

full knowledge de-

cide on dual The court personally

should address each defendant potential danger advise him of the

Case Details

Case Name: Roles v. State

Court Name: Idaho Supreme Court

Date Published: Dec 18, 1979

Citation: 604 P.2d 731

Docket Number: 12989

Court Abbreviation: Idaho