City and County of Denver District Court No. 06CR10408 Honorable Brian R. Whitney, Judge
Cynthia H. Coffman, Attorney General, Ethan Eliot Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
The Noble Law Firm, LLC, Antony Noble, Lakewood, Colorado; Ann P. Kaufman, P.C., Ann P. Kaufman, Taos, New Mexico, for Defendant-Appellant
Sternberg and Vogt, JJ., concur [*]
¶1 In September 2005, Martin Villanueva was arrested for the murder of Benjamin Garcia-Diaz. The police and prosecutors maintained that Villanueva shot Garcia-Diaz, who was a drug dealer in Villanueva's cocaine operation, because, in late 2004, Garcia-Diaz had been arrested, $30, 000 worth of Villanueva's drugs had been seized, and Garcia-Diaz was poised to cooperate with police. In fact, when Garcia-Diaz had failed to appear for his arraignment in March 2005, his lawyer, Charles Elliot, told the prosecutor that he presumed his client was the victim of a "drug related" murder.
¶2 On September 27, 2005, Elliot entered his appearance as Villanueva's lawyer in the first degree murder case. Villanueva was convicted and sentenced to life in prison without the possibility of parole.
¶3 In his postconviction motion, the denial of which he is now appealing, Villanueva asserted that he was convicted in violation of his Sixth Amendment right to conflict-free counsel. He alleged, primarily, that Elliot had information that undercut the prosecution's theory of the case, but he could not present it because he had obtained the information during his representation of Garcia-Diaz.
¶4 After an evidentiary hearing, the district court denied the motion. It found that "Elliot had information stemming from his representation of Garcia-Diaz that could have affected his ability to represent the defendant, " but concluded that the potential conflict did not adversely affect Elliot's performance.
¶5 While Villanueva's appeal of the district court's order was pending, the supreme court issued its decision in West v. People, 2015 CO 5, which clarified the standard for evaluating conflict of interest claims. In light of West, and as we explain below, we conclude that the district court erred in analyzing Villanueva's claims. We are unable to apply the correct standard as part of our de novo review, however, because the district court's order does not contain the necessary findings as to each part of the West standard. Accordingly, we vacate and remand that part of the district court's order addressing Villanueva's conflict of interest claims.
A. The Trial Proceedings
¶6 In December 2004, Garcia-Diaz's wife called the police to report a domestic violence incident. When the police arrived, she consented to a search of the house, and police discovered approximately one and a half kilograms of cocaine, worth about $30, 000. Garcia-Diaz was arrested on domestic violence-related charges and released on bond.
¶7 The prosecution later moved to add four felony charges related to the cocaine. Still, his lawyer, Elliot, told Garcia-Diaz that the case would likely be resolved as a misdemeanor. Because Garcia-Diaz's wife had stopped cooperating with police, Elliot advised Garcia-Diaz that the prosecution would have difficulty tying him to the drugs. The prosecution's motion to amend the charges was still pending at the time of Garcia-Diaz's murder.
¶8 Garcia-Diaz's case was set for arraignment on March 31, 2005, but he did not appear. He was reported missing on March 27, the same day his car was found abandoned and burned in Weld County.
¶9 Although Garcia-Diaz and Villanueva were close friends, Garcia-Diaz's family immediately suspected that Villanueva was involved in his disappearance. They pieced together Garcia-Diaz's last known whereabouts and learned that he was with Villanueva and another friend, Mario Rivera, the night before he went missing. When the family contacted Rivera, he told them that Villanueva, seemingly unprovoked, had shot Garcia-Diaz in the head. The family confronted Villanueva and surreptitiously taped his response. During this time, the family contacted Elliot to discuss their suspicions.
¶10 Rivera reported the murder to the police and, within a few days of Garcia-Diaz's disappearance, Villanueva was interviewed by the police. The interview was cut short, though, when Villanueva told the police that he was represented by counsel, Charles Elliot.
¶11 Elliot had represented Villanueva in three previous cases and, after being confronted by Garcia-Diaz's family and questioned by the police, Villanueva sought advice from Elliot. Elliot told him not to speak to the police.
¶12 In September, Garcia-Diaz's body was discovered and Villanueva was arrested on a charge of first degree murder. Elliot entered his appearance in the case shortly thereafter.
¶13 He advised Villanueva that, because he had represented Garcia-Diaz in the drug case, the prosecution might move to disqualify him, but he told Villanueva that he would try to secure an agreement from the prosecutor that would allow him to continue the representation. Elliot met with the prosecutor, who ultimately agreed not to seek disqualification. As part of their agreement, Elliot and the prosecutor decided they would not reveal the fact of Elliot's prior representation of Garcia-Diaz to the jury. Neither this agreement nor the fact that Elliot had represented Garcia-Diaz was disclosed to the court.
¶14 The case proceeded to trial in 2006. The prosecution laid out its theory of the case in its opening statement, detailing the seizure of cocaine from Garcia-Diaz's house and explaining that, once charges were filed, Garcia-Diaz was "in a posture to turn in his supplier." The prosecutor told the jury that Villanueva shot Garcia-Diaz at a critical time - four days before Garcia-Diaz's arraignment. A police officer later offered expert testimony that cooperation deals are typically struck at the time of arraignment.
¶15 Numerous other witnesses testified about the underlying facts of Garcia-Diaz's criminal case and Villanueva's motive to murder him: two police officers testified about the search of Garcia-Diaz's house and the seizure of cocaine; a crime lab technician described the purity of the cocaine; and the expert officer opined that the amount of drugs recovered was "significant, " assigned a dollar value to the cocaine, and said that dealers were often given incentives to identify their suppliers. According to Garcia-Diaz's brother, Garcia-Diaz told Villanueva that if he were charged with a drug offense, he would turn on Villanueva, and, in response, Villanueva threatened to "put a bullet in his head." Garcia-Diaz's sister testified that Villanueva had threatened to kill Garcia-Diaz or his wife because she had allowed the police to search the house and thereby discover the cocaine. A cousin testified that Villanueva was worried that his fingerprints were on the packages of cocaine seized from the house. Rivera, the eyewitness, also corroborated the prosecution's theory of the case. He testified that Villanueva supplied Garcia-Diaz with the cocaine and that, after the drugs were seized by police, Garcia-Diaz told Rivera that he was in debt to Villanueva.
¶16 The prosecution also suggested that Villanueva was angry because Garcia-Diaz was having an affair with his wife, but there was no direct evidence of that and Villanueva's wife denied it.
¶17 In closing argument, the prosecutor spelled out the motive for the jury:
We don't have to prove motive to you . . . . But as human beings, you want to know, why would this happen? Why would somebody . . . kill one of his best friends? . . .
It all starts in December 2004, [when] one and a half kilos of cocaine are found in the home of [Garcia-Diaz].
Garcia-Diaz's arraignment date was approaching, the prosecutor reminded the jury, and that was the time when he "ha[d] to make some decisions." The prosecutor referenced Villanueva's surreptitiously taped statements to Garcia-Diaz's family, in which he acknowledged having spoken with "Garcia-Diaz's lawyer." According to the prosecutor, Villanueva knew, presumably from those communications, that Garcia-Diaz was at a crossroad in his criminal case, and that "the only way he [was] going to get out of this case . . . [was] by going higher up the ladder, [to] his friend, Martin Villanueva."
¶18 Elliot did not attempt to rebut the prosecution's theory that Villanueva had killed Garcia-Diaz to prevent him from "snitching." But, as it turned out, Elliot knew that Garcia-Diaz had made no overtures to police or prosecutors about cooperating against Villanueva. As of the date of Garcia-Diaz's arraignment, Elliot had not had any discussions with prosecutors about a cooperation agreement or a ...