Colorado Court of Appeals - 3-1-12 - People v. Delgadillo

People v. Delgadillo            Conflict of Interest

Facts: Twilight Zone: From allegations that allegedly occurred in 1995, the prosecution charged Mr. Delgadillo with sexual assault, burglary, and other charges. Mr. Delgadillo emigrated from Mexico, spoke little English, and needed the services of an interpreter. During trial, Mr. Delgadillo’s attorney put him on the stand to testify. During his testimony, Mr. Delgadillo addressed the potential sentence, and testified that he was looking at 25 to 30 years. The prosecution whined that the sentence was irrelevant.  The Court obligingly struck the testimony. After Mr. Delgadillo testified, the Court held an in camera hearing at the request of the prosecutor. The prosecution sought and the Court allowed Mr. Delgadillo’s attorney to testify to the advice the attorney gave regarding the sentence. The prosecutor, who convinced the trial court to strike the sentence testimony given by Mr. Delgadillo, stated her reason for calling for the attorney’s testimony was that she intended to impeach the client with the lawyer’s correct advice regarding the sentence. The Court simply told Mr. Delgadillo, “this in no way waives your attorney/client privilege.” Mr. Delgadillo’s attorney did not object, but instead testified to advising Mr. Delgadillo’s of the same sentence. The prosecution got all flummoxed, and told the Court she assumed the lawyer advised Mr. Delgadillo correctly (the Court of Appeals noted the lawyer did advise the client correctly as the 25-30 range could be achieved through consecutive sentences under pre-1998 law). The prosecutor also claimed to be ‘concerned’ about effective assistance of counsel. Mr. Delgadillo’s attorney told the court it should not concern itself with the ineffectiveness claim by the prosecution because, if it is an issue, it is one better left to a 35(c).

Issues: Whether Mr. Degadillo’s attorney’s testimony caused a conflict? If so, did that conflict harm Mr. Degadillo?

Held: Yes and yes.

Reasoning: The Court of Appeals held that only the client may waive the attorney/client privilege - not the prosecutor, the trial court, or counsel. Further, attorney/client privilege includes all statements the client made to the attorney, but also includes all statements and advice the attorney gave to the client. Simple rule derived from the case - a lawyer testifying against his or her client creates a conflict. The Court of Appeals stated, “At no point during the in camera proceeding was there a clear demarcation of when defense counsel had ceased testifying, and when, if at all, he was supposed to have transitioned back into the role of advocate. The record reflects defense counsel's inherent conflict in trying to simultaneously respond to questioning from the court and the prosecutor, justify his earlier advice to defendant, and remain a zealous advocate. See Maples v. Thomas, ––– U.S. ––––, –––– n. 8 (No. 10–63, Jan. 18, 2012) (noting law firm's conflict of interest in continuing to represent the defendant in post-conviction proceedings where, to protect the firm's interest in its own reputation, the firm failed to assert the strongest argument in his favor, namely, its abandonment of him). While laboring under these divergent pressures, defense counsel's ability to represent his client was materially limited.”.
>Link to People v. Delgadillo here<