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F-2014-279

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Jacinto Ignacio Cruz-Brizuela v The State Of Oklahoma

F-2014-279

Filed: May 19, 2015

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

# Jacinto Ignacio Cruz-Brizuela and Jorge Alberto Guevara appealed their convictions for Aggravated Trafficking in Illegal Drugs (Cocaine). Conviction and sentence: Cruz-Brizuela received 15 years in prison and a $100,000 fine, while Guevara got 30 years in prison and a $250,000 fine. Judge Lumkin dissented. ### Summary: Cruz-Brizuela and Guevara were driving a semi-truck when the police found cocaine hidden inside it. They were arrested and convicted based on the evidence presented during their trial, where both shared a lawyer. However, they believed that their lawyer could not fully defend them because he had to manage conflicting interests in representing both. They thought this made their defense weaker. The court agreed that the conflict of interest harmed their case and ordered new trials with separate lawyers. Judge Lumkin disagreed and felt that the lawyer made reasonable choices during the trial.

Decision

The Judgments and Sentences of the district court are REVERSED and the cases are REMANDED for a NEW TRIAL. The Motions for Evidentiary Hearing are DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Issues

  • Was there a conflict of interest that adversely affected the performance of counsel representing both Cruz-Brizuela and Guevara?
  • Did defense counsel's conflict prevent the development of distinct defenses for each defendant?
  • Was the trial court's failure to address the potential conflict of interest a violation of the Sixth Amendment right to effective assistance of counsel?
  • Did the appellants demonstrate that the limited defense choices impacted the jury's understanding of their culpability?

Findings

  • the court erred in denying the appellants the effective assistance of counsel due to an actual conflict of interest
  • the convictions of Cruz-Brizuela and Guevara are reversed
  • the cases are remanded for new trials with conflict-free counsel
  • the motions for evidentiary hearing are denied

F-2014-279

May 19, 2015

Jacinto Ignacio Cruz-Brizuela

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Appellants Jacinto Ignacio Cruz-Brizuela and Jorge Alberto Guevara were tried together by jury in the District Court of Oklahoma County, Case No. CF-2012-2694, and each was convicted of Aggravated Trafficking in Illegal Drugs (Cocaine), in violation of 63 O.S.2011, § 2-415. The jury assessed punishment for Cruz-Brizuela at fifteen years imprisonment and a $100,000.00 fine. Punishment for Guevara was assessed at thirty years imprisonment and a $250,000.00 fine. The Honorable Kenneth C. Watson, who presided at trial, sentenced each appellant accordingly. Cruz-Brizuela and Guevara appeal.

BACKGROUND

On April 25, 2012, Oklahoma City Police Officer Harold James stopped a semi-tractor trailer for a lane change violation on east bound I-40 around the Choctaw area. At the time of the stop the semi was driven by Jorge Alberto Guevara and was also occupied by Jacinto Ignacio Cruz-Brizuela who was along to help drive. Because Guevara was driving a commercial vehicle, he was required to show the officer five documents including his driver’s license, valid and current medical card, vehicle registration, bill of lading and the drivers’ log books. Upon examining Cruz-Brizuela’s log book and finding what he believed to be irregular entries, Officer James asked Guevara and Cruz-Brizuela several questions about their trip. His suspicions were not dispelled and he asked Guevara if he could search the vehicle and trailer. Guevara gave consent for the search and James called for the assistance of a K-9 unit. When the dog arrived, it alerted for the odor of controlled dangerous substance on the trailer. The trailer was searched and twenty-three one kilogram packages of powder cocaine were found hidden in a partition at the front of the trailer. A cordless drill was also found in the truck. This drill had a bit that fit the Torx head screws used to secure the wood covering over the hidden compartment. Guevara and Cruz-Brizuela were arrested and each was charged with Trafficking in Illegal Drugs. They were tried together and represented at trial by the same attorney.

Evidence was presented at trial that Guevara lived in Riverside, California and was an independent semi-tractor trailer owner/operator. Guevara’s friend, Cruz-Brizuela, had secured his commercial driver’s license and was training with Guevara to drive Guevara’s semi-truck so that he could assist Guevara with driving on long trips. On April 23, 2012, Guevara drove from his home in Riverside to Van Nuys, California to pick up a 19,000 pound load of copier toner from Micro Solutions that he had secured through a broker. After his truck was loaded and sealed, which took about two hours, he drove back to Riverside where he picked up Cruz-Brizuela. The two left that same evening and drove to Hesperia, California where they stopped for the night because Guevara was waiting for an advance payment from the broker to purchase fuel. In the morning, they drove to Seligman, Arizona where they stopped again. From Seligman they drove to Albuquerque where they ate and refueled before driving to Amarillo, Texas. After stopping in Amarillo, they drove to Oklahoma City where they were stopped by Officer James for the traffic violation.

Officer James testified that he became suspicious after he looked at Cruz-Brizuela’s log book and saw a notation showing that Guevara and Cruz-Brizuela stopped in Seligman for six hours. James testified that in his observations Seligman is not a place where truck drivers typically stop to refuel or eat. James found this stop additionally odd because there were two drivers, both had been off the road for three days before they started the trip and they had only driven 400 miles since the beginning of their trip when they stopped in Seligman. When asked about this stop, Guevara told James that they stopped to change drivers. When James inquired about the length of the stop, Guevara added that they ate while in Seligman and that Cruz-Brizuela was asleep. Cruz-Brizuela told James that they ate and watched TV in Seligman. Guevara testified at trial that they only stayed an hour and a half in Seligman which was enough time to eat and check the truck. He said that he told Cruz-Brizuela to indicate sleep time in the log book so that Cruz-Brizuela could start driving. Guevara denied that he told Cruz-Brizuela to lie and claimed that the six hour notation in the log book was a mistake. Cruz-Brizuela also testified that the six hour Seligman stop entry in the drivers’ log was a mistake.

The State’s argument at trial was that the cocaine was placed in the trailer either before the toner was loaded at Van Nuys or during the six hour stop at Seligman. The prosecutor maintained that it was unlikely that somebody at Micro Solutions loaded nine million dollars’ worth of cocaine into a hidden compartment of a semi-tractor trailer not knowing where the load was to be delivered. It was far more likely, the prosecutor argued, that the cocaine was loaded by Cruz-Brizuela and Guevara who had the necessary tools for removing and replacing the back wall of the trailer during the six hour stop in Seligman.

DISCUSSION

Cruz-Brizuela and Guevara were tried together and were represented by the same defense counsel at trial. Both argue on appeal that they were denied their Sixth Amendment right to the effective assistance of counsel because trial counsel owed each of them conflicting duties. These conflicting duties, they assert, created an actual conflict of interest which adversely affected counsel’s representation. This issue was not raised below. A defendant’s Sixth Amendment right to the effective assistance of counsel includes the right to be represented by an attorney who is free from conflicts of interest. See, e.g., Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Holloway v. Arkansas, 435 U.S. 475, 481-82, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978). The right to the assistance of counsel free of conflicting interests extends to any situation in which a defendant’s counsel owes conflicting duties to the defendant and some other person. Wood, 450 U.S. at 268-72, 101 S.Ct. at 1101-03; Allen v. State, 1994 OK CR 30, ¶ 11, 874 P.2d 60, 63. A conflict of interest is present whenever one defendant stands to gain significantly by counsel adducing probative evidence or advancing plausible arguments that are damaging to the cause of a codefendant whom counsel is also representing. Ramirez v. Dretke, 396 F.3d 646, 650 (5th Cir. 2005).

Claims of ineffective assistance of counsel are mixed questions of law and fact which are subject to de novo review. Davis v. State, 2005 OK CR 21, ¶ 7, 123 P.3d 243, 246. To succeed in an ineffective assistance of counsel claim, a defendant usually must establish his or her counsel was constitutionally deficient and the deficiency was prejudicial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of a conflict of interest claim where the defendant did not object at trial, however, the defendant must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). An actual conflict of interest results if counsel was forced to make choices advancing other interests to the detriment of his client. United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998). The defendant has the burden of showing specific instances to support his allegations of an actual conflict adverse to his interests. United States v. Alvarez, 137 F.3d at 1251. To show actual conflict of interest, the defendant must point to specific instances in the record which suggest an impairment or compromise of his interests for the benefit of another party. Id.

1. Cruz-Brizuela

The defense relied upon at trial was that neither Cruz-Brizuela nor Guevara had knowledge of the cocaine concealed in the trailer. Cruz-Brizuela maintains on appeal that this common defense was pursued as a direct result of counsel’s conflict which prohibited counsel from presenting a more convincing defense for him, i.e., that he did not know about the cocaine but that Guevara did, because this would obviously be detrimental to Guevara. Cruz-Brizuela argues that this defense had support in the evidence presented at trial. Guevara was the owner/operator of the semi-tractor trailer in which the cocaine was found. The evidence showed that despite the fact that Guevara was short on diesel fuel necessary for the trip, he drove alone from Riverside to Van Nuys to load the trailer and then retraced his route and went back to Riverside to pick up Cruz-Brizuela. This not only added extra time and miles to the trip, it placed Guevara in possession and control of the tractor trailer to the exclusion of Cruz-Brizuela immediately before and during the time it was loaded with the toner. Defense counsel, however, because of the conflicting duties owed to Cruz-Brizuela and Guevara, could not develop this evidence in a way that would implicate Guevara to the exclusion of Cruz-Brizuela. Nor could he advance the plausible argument that Cruz-Brizuela did not know about the cocaine but that Guevara likely did know about it.

2. Guevara

The testimony presented at trial showed that Guevara, as the owner/operator, had the most access to the trailer prior to the trip. The prosecutor elicited evidence, however, suggesting that Guevara’s possession and control of the trailer at least two weeks prior to the trip was not exclusive. On cross-examination the prosecutor asked Guevara why Cruz-Brizuela was pulled over by the California Highway Patrol two weeks before the stop in this case while driving by himself. Guevara initially replied that he did not remember this and then acknowledged that sometimes he had to let Cruz-Brizuela drive so that he could learn. Guevara testified that when Cruz-Brizuela drove, he was in the truck with him. The prosecutor asked again about the incident where Cruz-Brizuela got a ticket while driving the truck alone. Guevara stated that he did not allow Cruz-Brizuela to drive alone and he did not remember the incident to which the prosecutor was referring. Guevara’s testimony in response to the prosecutor’s questions was confused and inconsistent but did open the door to the possibility that Cruz-Brizuela had, on at least one occasion, sole possession of the truck without Guevara’s knowledge. Defense counsel’s conflict of interest prohibited him from exploring and developing this evidence in a way that would implicate Cruz-Brizuela to the exclusion of Guevara. Nor could counsel advance the plausible argument that Guevara did not know about the cocaine but that Cruz-Brizuela likely did know about it.

CONCLUSION

Given that the State’s only real challenge in this case was to prove the defendants’ knowledge of the cocaine hidden in the tractor trailer, the limitation placed on defense counsel by the actual conflict of interest was significant and material to both Cruz-Brizuela’s and Guevara’s defense. Both appellants have shown that an actual conflict of interest adversely affected their lawyer’s performance with regard to his representation of them. Cruz-Brizuela’s and Guevara’s convictions should be reversed and the cases remanded to the district court for new trials with conflict free counsel.

DECISION

The Judgments and Sentences of the district court are REVERSED and the cases are REMANDED for a NEW TRIAL. The Motions for Evidentiary Hearing are DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon delivery and filing of this decision.

Footnotes:

  1. Under 21 O.S.2011, § 13.1
  2. 63 O.S.2011, § 2-415
  3. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981)
  4. Holloway v. Arkansas, 435 U.S. 475, 481-82, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426 (1978)
  5. Allen v. State, 1994 OK CR 30, ¶ 11, 874 P.2d 60, 63
  6. Ramirez v. Dretke, 396 F.3d 646, 650 (5th Cir. 2005)
  7. Davis v. State, 2005 OK CR 21, ¶ 7, 123 P.3d 243, 246
  8. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)
  9. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)
  10. United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998)
  11. United States v. Alvarez, 137 F.3d at 1251
  12. Malone v. State, 2013 OK CR 1, ¶ 19, 293 P.3d 198, 207
  13. Rutan v. State, 2009 OK CR 3, ¶ 67, 202 P.3d 839, 852-853
  14. Banks v. State, 1991 OK CR 51, ¶ 38, 810 P.2d 1286, 1296
  15. 22 O.S.2011, § 439
  16. Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980)
  17. Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 1104, 67 L.Ed.2d 220 (1981)
  18. United States v. McKeighan, 685 F.3d 956, 966 (10th Cir. 2012)
  19. Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)

Oklahoma Statutes citations:

  • Okla. Stat. tit. 63 § 2-415 - Aggravated Trafficking in Illegal Drugs
  • Okla. Stat. tit. 21 § 13.1 - Parole Eligibility
  • Okla. Stat. tit. 22 § 3.3 - Consolidation of Appeals
  • Okla. Stat. tit. 22 § 439 - Severance of Defendants
  • Okla. Stat. tit. 22 § 3.15 - Mandate Issuance
  • Okla. Stat. tit. 22 § 3.11 - Evidentiary Hearings
  • Okla. Stat. tit. 21 § 701.8 - Effective Assistance of Counsel

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

  • Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220
  • Holloway v. Arkansas, 435 U.S. 475, 481-82, 98 S.Ct. 1173, 1177, 55 L.Ed.2d 426
  • Allen v. State, 1994 OK CR 30, I 11, 874 P.2d 60, 63
  • Ramirez v. Dretke, 396 F.3d 646, 650 (5th Cir. 2005)
  • Davis v. State, 2005 OK CR 21, "I 7, 123 P.3d 243, 246
  • Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674
  • Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333
  • United States v. Alvarez, 137 F.3d 1249, 1252 (10th Cir. 1998)
  • Rutan v. State, 2009 OK CR 3, I 67, 202 P.3d 839, 852-853
  • Banks v. State, 1991 OK CR 51, IT 38, 810 P.2d 1286, 1296
  • Malone v. State, 2013 OK CR 1, 1 19, 293 P.3d 198, 207

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