               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 36235

STATE OF IDAHO,                                 )     2010 Unpublished Opinion No. 705
                                                )
       Plaintiff-Respondent,                    )     Filed: November 12, 2010
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
ALEJANDRO MANUEL CASTILLO,                      )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Juneal C. Kerrick, District Judge.

       Judgment of conviction and sentence for aiding and abetting robbery, affirmed.

       Nevin, Benjamin, McKay & Bartlett LLP, Boise, for appellant. Deborah A.
       Whipple argued.

       Hon. Lawrence G. Wasden, Attorney General; Nicole L. Schafer, Deputy
       Attorney General, Boise, for respondent. Nicole L. Schafer argued.
                 ________________________________________________
PERRY, Judge Pro Tem
       Alejandro Manuel Castillo appeals from the judgment of conviction entered upon a jury
verdict finding him guilty of aiding and abetting robbery, Idaho Code §§ 18-6501-6503, 18-204.
We affirm.
                                               I.
                      FACTS AND PROCEDURAL BACKGROUND
       On July 2, 2008, Anna Mireles and her family attended a fireworks display near Mercy
Medical Center North in Nampa. Mireles, who was four months pregnant at the time and
wearing a blue T-shirt, testified that as she walked back to her car with her daughter and her
daughter‟s two friends, a man, later identified as Miguel Pastor, asked her whether she knew that
“this was North Side territory.” Mireles responded, “Are you stupid? I‟m not a gang-banger.
Look at me. Do I look like a gang-banger?” Mireles testified that Pastor, who was wearing a
black shirt, then “gestured with his hands” and several individuals, who were all wearing



                                               1
“red/black or . . . red belts,”1 surrounded her, including Castillo, who was wearing a red shirt.
The individuals began yelling “North Side, North Side,” and Mireles‟ brother, who had walked
ahead with Mireles‟ husband, ran back towards her.
       According to Mireles, her brother stated that Mireles was pregnant, at which point Pastor
grabbed her purse and swung it at her while simultaneously running at her brother. The purse
fell to the ground and everything fell out of it. Mireles testified that her daughter bent down and
put everything back in the purse and was attacked by some girls that were “part of the people”
with Pastor. Mireles hit two of the females with a lawn chair that she was carrying. Mireles
testified that Castillo then picked up the purse and began running with it towards a red van.
Mireles said, “He took my purse,” and her husband and brother ran after Castillo and a fight
ensued next to the van. Mireles testified that at some point during the fight, Castillo, who no
longer had the purse, attempted to jump into a little blue car.
       Mireles‟ daughter also testified, and her testimony varied slightly from her mother‟s. She
confirmed Mireles‟ account of the initial confrontation with Pastor. However, she testified that
her mother put the purse down, that Pastor took the purse, swung it at Mireles, and then passed it
off to Castillo. The daughter also testified that she was attacked right after she saw Castillo
running off with the purse.
       Another witness, Angelica Melendrez, testified that she was sitting in her van when she
saw an individual in a black shirt swing a purse at someone, walk in front of her van really fast
still carrying the purse, and open a door to a red van. Melendrez testified that she heard a
woman yelling that someone had taken her purse. About “ten seconds later,” Melendrez saw an
individual in a red shirt running, and a group of guys running after him. Melendrez testified that
she saw the individual wearing the red shirt getting beat up. She then called the police regarding
the fight and a possible stolen purse.
       When officers arrived, they recovered the purse from a red van. Castillo was located in a
“dark colored” car that was “like a Dodge neon.” Castillo began walking away from the vehicle,
and an officer asked him to come back several times. When Castillo did not comply, the officer



1
       Mireles testified that she was familiar with “gang issues” in Nampa and that, based on her
general knowledge, the color red was associated with the North Side gang and the color blue was
associated with the South Side gang.


                                                  2
took him into custody. The officer testified that Castillo appeared as though he had been in a
fight.   When Castillo was later interviewed, he told one of the investigating officers that he had
been in a verbal altercation with a female regarding some comments he had made to some kids.
The female left and came back with three males, one of whom had a bar and “called [Castillo] on
to fight him.” The officer testified that Castillo admitted he was “involved in the fight,” but
denied that he had taken the purse.
         Castillo was ultimately charged in separate cases, which were later consolidated, with
felony aiding and abetting robbery, two misdemeanor counts of battery, and a misdemeanor
count of resisting and obstructing an officer. A jury found Castillo guilty of aiding and abetting
robbery and resisting and obstructing an officer, but found him not guilty on the two counts of
battery against Mireles‟ husband and brother. The court imposed a unified sentence of ten years,
with two and one-half half years determinate on the aiding and abetting charge. The court
imposed sixty days in jail on the resisting and obstructing charge, to run concurrent with the
other sentence, with credit for time served. Castillo appeals.2
                                                  II.
                                             ANALYSIS
A.       Conflict of Interest
         Castillo contends that he was denied his state and federal constitutional rights to conflict-
free counsel.3 Specifically, he contends that the district court was aware of a potential conflict of
interest, that it failed to conduct an adequate inquiry into the conflict, and that this failure
amounts to a violation of his constitutional rights requiring an automatic reversal of his
conviction. Castillo argues that even if an automatic reversal is not required, either because the
court had no duty to inquire or because it did make a sufficient inquiry, reversal is still required
because an actual conflict of interest exists.



2
       While Castillo requests this Court to reverse his convictions, it appears that there is only
an appeal as to the aiding and abetting conviction.
3
       Although Castillo contends that both constitutions were violated, he provides no cogent
reason why the Idaho Constitution should be applied differently than the United States
Constitution in this case. Therefore, this Court will rely on judicial interpretation of the Sixth
Amendment in its analysis of Castillo‟s claims. See State v. Schaffer, 133 Idaho 126, 130, 982
P.2d 961, 965 (Ct. App. 1999) (applying rule in context of Fourth Amendment claim).

                                                  3
       The    Sixth   Amendment       to   the   United   States   Constitution    guarantees    that
“[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of
Counsel for his defence.” U.S. CONST. amend. VI. The amendment, as applied to the states by
the Due Process Clause of the Fourteenth Amendment, Powell v. Alabama, 287 U.S. 45, 60-61
(1932), has been interpreted to include the right to be represented by conflict-free counsel. Wood
v. Georgia, 450 U.S. 261, 271 (1981). The right has been accorded “not for its own sake, but
because of the effect it has on the ability of the accused to receive a fair trial.” Mickens v.
Taylor, 535 U.S. 162, 166 (2002).
       In order to ensure that a defendant receives conflict-free counsel, a trial court has an
affirmative duty to inquire into a potential conflict whenever it knows or “reasonably should
know that a particular conflict may exist.” State v. Lovelace, 140 Idaho 53, 60, 90 P.3d 278, 285
(2003); see also Cuyler v. Sullivan, 446 U.S. 335, 347 (1980). A trial court‟s failure to conduct
an inquiry, under certain circumstances, will serve as a basis for reversing a defendant‟s
conviction. Cuyler, 446 U.S. at 346-47; Holloway v. Arkansas, 435 U.S. 475, 488 (1978).
       Whether a trial court‟s failure to adequately inquire into a potential conflict of interest is
enough, on its own, to justify reversal depends on whether the defendant objected to the conflict
at trial. State v. Severson, 147 Idaho 694, 703, 215 P.3d 414, 423 (2009); see also Cuyler, 446
U.S. at 348. “In order to establish a violation of the Sixth Amendment, a defendant who raised
no objection at trial must demonstrate that an actual conflict of interest adversely affected his
lawyer‟s performance.” Cuyler, 446 U.S. at 348. The defendant need not, however, show
prejudice in order to obtain relief as the conflict itself demonstrates a denial of the right to have
the effective assistance of counsel. Id. at 349-50. “But until a defendant shows that his counsel
actively represented conflicting interests, he has not established the constitutional predicate for
his claim of ineffective assistance.” Id. at 350. “On the other hand, once a defendant raises a
timely objection to a conflict, the trial court is constitutionally obligated to determine whether an
actual conflict of interest exists.” Severson, 147 Idaho at 703, 215 P.3d at 423. “A court‟s
failure to make a proper inquiry after a defendant‟s timely objection will result in the automatic
reversal of the defendant‟s conviction.” Id. “Because the trial court‟s duty to inquire after a
defendant makes a timely objection is a separate and distinct obligation, a defendant in such
circumstances need not show that an actual conflict adversely affected the lawyer‟s
performance.” Id.


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         In order to address Castillo‟s claim, it is important to note how the issue was raised
below. On the morning of Castillo‟s trial, the district court indicated that the prosecutor desired
to make a record of some matters prior to proceeding with the jury selection. The court,
summarizing the events that had previously transpired affecting the case, noted that Miguel
Pastor, Castillo‟s co-defendant, had been previously scheduled for a jury trial. Pastor‟s attorney,
Dayo Onanubosi, who was with the Canyon County Public Defender‟s Office at the time, had
originally requested a joint trial for Pastor and Castillo. Castillo‟s attorney, Alexander Briggs,
who was also with the Canyon County Public Defender‟s Office, indicated that he would object
to a joint trial.
         The court further indicated that after initially requesting a joint trial, Onanubosi informed
the court, at the time set for Pastor‟s trial, that his client could not proceed to trial because he
believed there was a conflict of interest, “that they [the public defender‟s office] have to
represent their client 100 percent, they represented what we call co-defendants, you, Mr. Castillo,
as well as Mr. Pastor, and if they represent one, they needed the information from the other.”
The court stated at that time that there was “probably” a conflict of interest relative to the
representation of the co-defendants and ordered that Pastor be assigned a “conflicts attorney” and
continued his trial.    The court indicated that the conflicts attorney ultimately assigned to
represent Pastor was Shari Dodge.
         The prosecutor generally agreed with the court‟s summary of the events, and attempted to
further explain his perception of what was going on in Castillo and Pastor‟s cases.               The
prosecutor indicated that while the State had been ready to proceed with Pastor‟s case the
previous month, the conflict issue was raised and a jury had to be sent home. The prosecutor
also represented that while the court had ordered a conflicts attorney assigned in Pastor‟s case,
Onanubosi had subsequently appeared in court with Pastor advising that he had waived his right
to a speedy trial and also indicating that following Castillo‟s trial, “there was a good possibility
that the conflict they had in [Pastor‟s] case would evaporate at that time, and indicated he would
presume [sic] his representation of the defendant.” The prosecutor requested that both Castillo
and Pastor be afforded an in-camera proceeding without the prosecutor present where all
potential conflicts could be explained to the defendants. The prosecutor also expressed his belief
that the public defender‟s office was using the conflict issue as a tactic to try Castillo‟s case first
and “hang onto [Pastor‟s] case -- depending on the outcome of [Castillo‟s case].” Based upon


                                                   5
these perceptions, the prosecutor requested an in-camera proceeding in order to make a record, as
well as sanctions against the public defender‟s office for the cost of the jury.
       Castillo‟s counsel, Briggs, responded to the prosecutor‟s comments stating that he had
never appeared with Pastor and that he understood that Pastor had received conflict counsel the
previous day. He then stated, “Mr. Castillo -- there‟s no conflict of interest for me representing
Mr. Castillo in this trial.” The prosecutor disagreed, arguing that Briggs‟ representation was
“exactly opposite” of what Onanubosi had said was a “serious enough conflict, that they had to
vacate [Pastor‟s] trial and back out of the case last month.”
       The district court expressed a concern about getting involved in a conflict of interest with
respect to confidential communications between Castillo and his attorney, stating that it would
not do “any good to do an in-camera,” as even the court could not inquire into areas of
confidentiality absent some sort of waiver. The court asked whether Castillo would be willing,
with respect to whether a conflict existed, to waive his right to confidentiality, to which Castillo
responded, “I‟m not really -- there‟s no conflict that I‟m aware of.” The court asked whether he
wanted different representation, and Castillo responded no.
       The court and the prosecutor disagreed as to whether the court could conduct an in-
camera hearing.     The prosecutor reiterated his position that the court should “talk to the
defendant” about potential conflicts of interest. The court maintained that it was unaware of any
questions that it would be permitted to ask that would not interfere with the “confidentiality
between attorney and client.” The court indicated that if Briggs wanted an in-camera conference,
he could assess the need to outweigh confidentiality rights and request such a hearing. The court
also addressed Castillo, stating: “If you want to inquire further of what this attorney for the State
is talking about, a conflict of interest, I‟m more than willing [to] have you do that.” Castillo
responded, “I see no conflict.”
        As noted, where a defendant raises a timely objection to a conflict, the trial court is
constitutionally obligated to determine whether an actual conflict of interest exists, and the
failure to conduct a proper inquiry will result in an automatic reversal of the defendant‟s
conviction. Severson, 147 Idaho at 703, 215 P.3d at 423. The court‟s duty of inquiry following
a defendant‟s timely objection is a separate and distinct obligation and, as such, the defendant is
not required to show that an actual conflict adversely affected the lawyer‟s performance in such a
circumstance. Id.


                                                  6
       In this case, it is not disputed that Castillo never objected to any conflict of interest.
Rather, as Castillo acknowledges, the issue was raised by the prosecutor. However, Castillo
contends, in a footnote, that “[t]he fact that the attorney worked for the state rather than the
defendant is of no import to the question of the proper remedy.” Castillo argues that because the
prosecutor raised the issue, the court was constitutionally obligated to inquire, and its failure to
do so requires automatic reversal. This argument fails to recognize, however, that the issue had
already been presented to, and addressed by, the district court.
       It is apparent that the court believed that it had dispensed with any issues relative to
conflicts of interest. The court indicated that it was aware of a potential conflict regarding the
two attorneys at the public defender‟s office representing co-defendants, and the court addressed
that conflict by ordering the public defender‟s office to assign a conflicts attorney in Pastor‟s
case. When the issue was raised again by the State in an effort to make a record, the court
determined that it would not hold an in-camera proceeding due to its concern that it would be
invading Castillo‟s confidentiality rights. The court‟s statements suggest that it was unaware of
any conflicts of interest, other than the one the court believed it had already dealt with, that
required the court to conduct any further inquiry. Based upon the record before us, we conclude
that Castillo has not established that the court had any duty of further inquiry after it had ordered
a conflicts attorney appointed in the co-defendant‟s case and was being assured by Castillo‟s
counsel that no current conflict existed.
       The mere fact that Castillo and Pastor were represented by attorneys in the same public
defender‟s office does not require automatic disqualification. See State v. Cook, 144 Idaho 784,
794, 171 P.3d 1282, 1292 (Ct. App. 2007) (“automatically disqualifying a public defender where
another attorney in the office has a conflict of interest would significantly hamper the ability to
prove legal representation of indigent clients”). In Cook, this Court concluded that a per se rule
imputing conflicts of interest to affiliated public defenders is inappropriate “where there is no
indication the conflict would hamper an attorney‟s ability to effectively represent a client.” Id.
The Court held that “such conflict questions should be addressed by trial courts on a case-by-
case basis, where the court takes individual situations into consideration to determine whether a
defendant‟s right to counsel is threatened by competing interests.” Id.
       Although the court acknowledged a potential conflict when the issue was initially raised
by Pastor‟s counsel and addressed it by ordering that a conflicts attorney be appointed, Castillo


                                                 7
maintains that a conflict existed before a conflicts attorney was assigned and relies upon the
prosecutor‟s statements that had Castillo obtained a different attorney “they probably could have
worked out a plea bargain deal where [Castillo] could have gotten off with a misdemeanor or
something much less, and we would have been going after Mr. Pastor with his cooperation.”
This assertion, however, is belied by Castillo‟s attorney‟s representation that an offer to plead
guilty to a misdemeanor had been made, but it was rejected by the State. Moreover, Castillo has
not argued that the court knew or should have known about a potential conflict of interest before
it was actually raised in Pastor‟s case. At the time set for Castillo‟s trial, counsel once again
assured the court that no conflict existed that affected his representation of Castillo. These
circumstances simply did not warrant further inquiry by the court.          Castillo has failed to
demonstrate any error on the part of the district court to establish a violation of his Sixth
Amendment right to conflict-free counsel.
B.     Prosecutorial Misconduct
       Castillo next contends that the prosecution violated his constitutional right to a fair trial
by committing various acts of prosecutorial misconduct. He asserts that the prosecutor engaged
in misconduct during closing and rebuttal arguments by inflaming the prejudice and passions of
the jury, shifting the burden of proof, and arguing that defense counsel was “annoying.” The
State counters that Castillo failed to raise some objections at trial, that the prosecutor did not
engage in misconduct, and that even if the prosecutor‟s statements were improper, any error was
harmless.
       Although our system of criminal justice is adversarial in nature, and the prosecutor is
expected to be diligent and leave no stone unturned, the prosecutor is nevertheless expected and
required to be fair. State v. Field, 144 Idaho 559, 571, 165 P.3d 273, 285 (2007). However, in
reviewing allegations of prosecutorial misconduct we must keep in mind the realities of trial. Id.
A fair trial is not necessarily a perfect trial. Id. When there has been a contemporaneous
objection we determine factually if there was prosecutorial misconduct, then we determine
whether the error was harmless. Id.; State v. Hodges, 105 Idaho 588, 592, 671 P.2d 1051, 1055
(1983); State v. Phillips, 144 Idaho 82, 88, 156 P.3d 583, 589 (Ct. App. 2007). When there is no
contemporaneous objection, however, a conviction will be reversed for prosecutorial misconduct
only if the conduct is sufficiently egregious so as to result in fundamental error. Field, 144 Idaho
at 571, 165 P.3d at 285.


                                                 8
       The Idaho Supreme Court recently took the opportunity to clarify the appellate standards
employed when analyzing alleged trial errors for harmless error or fundamental error in State v.
Perry, ___ Idaho ___, ___ P.3d ___ (July 23, 2010) (reh‟g pending). Where the defendant has
demonstrated that prosecutorial misconduct has occurred, and such misconduct was followed by
a contemporaneous objection, such error is reviewed for harmless error in accordance with
Chapman v. California, 386 U.S. 18 (1967). Perry, ___ Idaho at ___, ___ P.3d at ___. “Under
the Chapman harmless error analysis, where a constitutional violation occurs at trial, and is
followed by a contemporaneous objection, a reversal is necessitated, unless the State proves
„beyond a reasonable doubt that the error complained of did not contribute to the verdict
obtained.‟” Id. at ___, ___ P.3d at ___ (emphasis in original) (quoting Chapman, 386 U.S. at
24). Thus, Idaho now employs the Chapman harmless error test to all objected-to error. Id.
       Where prosecutorial misconduct is not objected to at trial, a reversal may only occur
when the defendant demonstrates that the violation qualifies as fundamental error. Id. at ___,
___ P.3d at ___. The Perry Court held that in order to raise a claim of fundamental error that
may be considered for the first time on appeal:
       [T]he defendant bears the burden of persuading the appellate court that the alleged
       error: (1) violates one or more of the defendant‟s unwaived constitutional rights;
       (2) plainly exists; and (3) was not harmless. If the defendant persuades the
       appellate court that the complained of error satisfies this three-prong inquiry, then
       the appellate court shall vacate and remand.

Id. at ___, ___ P.3d at ___.
       1.      Inflaming the prejudice and passions of the jury
       Castillo first argues that the prosecutor committed misconduct by commenting that the
State‟s witnesses were brave for testifying, thus “implying that Mr. Castillo or others would
harm them for accusing him of wrongdoing.” The prosecutor made two such comments, one in
his initial closing argument and then again in rebuttal. The prosecutor stated in closing:
               Ladies and gentlemen, I finally want to wrap up with the idea -- it‟s not an
       idea, but just the fact that, look, we had Anna Mireles and her daughter come in
       here and testify, and Ms. Melendrez, and that‟s a lot of courage. They have to
       live in this community, they have to live with the consequences no matter what
       happens.

Defense counsel did not object to this statement. The prosecutor later stated in rebuttal:




                                                  9
               At the end of the day, we have the victim, her daughter, another witness,
       they are taking a big step by coming in and saying, Yeah, this is what happened,
       this is what happened to us. They are being courageous to testify, but they have
       to go on --

Defense counsel objected to this second statement, and the objection was sustained.
       With respect to the unobjected-to statement made during the initial closing argument,
Castillo has not argued for application of the fundamental error doctrine. A party waives an
issue on appeal if either authority or argument is lacking. State v. Zichko, 129 Idaho 259, 263,
923 P.2d 966, 970 (1996). Even assuming the issue had been properly presented on appeal, we
conclude the prosecutor‟s statement does not amount to fundamental error.4
       With respect to the prosecutor‟s second statement, Castillo objected, and the court
sustained his objection. Castillo did not move to strike the prosecutor‟s statement, nor did he
request a limiting instruction. Therefore, Castillo obtained the relief he requested, and we do not
address his argument further.
       2.      Shifting the burden of proof
       Castillo claims that the prosecutor shifted the burden of proof by arguing to the jury that
Castillo should have put on his own witnesses to testify as to his innocence, specifically stating
in his rebuttal argument:
              Listen, the other thing I wanted to hit on was the missing witness thing.
       You know, yeah, there is lots of witnesses. What about all the girls that were with
       Alejandro and his friends? What about the girls that attacked Rose?
       MR. BRIGGS: I am going to object to that, it sounds like he is shifting the
       burden.
       THE COURT: Overruled. It‟s proper rebuttal.

Immediately following the objected-to statements, the prosecutor stated:
               Thank you. They are missing witnesses, and it would be great to hear
       from all of them, but they are not here.
               I mean, the thing is, you have got the evidence. You have got the victim,
       her daughter. You have got Angelica. You have got the officers. They are
       telling you this is basically what happened. You have got the evidence.


4
         Castillo‟s attorney asserted at oral argument that because the Perry Court determined that
its restatement of the standards “shall not be given retroactive application,” Perry at ___, ___
P.3d at ___, that case does not apply. However, because the prosecutor‟s statement would not
qualify as fundamental error under either standard, we need not address counsel‟s contention that
Perry does not apply.

                                                10
When placed in its proper context, it is clear that the prosecutor‟s argument was not an attempt to
shift the burden of proof, but rather an attempt to demonstrate that there was sufficient evidence
for the jury to find Castillo guilty. The prosecutor‟s argument merely highlighted the fact that
despite the absence of some individuals who witnessed the events that evening, the jury had the
material witnesses to establish the evidence supporting the charges. Therefore, we hold that the
prosecutor‟s comment did not constitute error.
       3.      Disparaging defense counsel
       Finally, Castillo asserts that the prosecutor committed misconduct by arguing to the jury,
over his objection, that defense counsel was “annoying” when he attempted to pin Mireles down
to time frames. However, a careful review of the record makes clear that the prosecutor, in
response to defense counsel‟s argument, was expressing annoyance at defense counsel‟s tactic of
pinning Mireles down to a specific time frame and then using it against her during closing
argument. While the prosecutor‟s statement was, at most, inappropriate, it was not an attempt to
disparage defense counsel personally. Therefore, Castillo has failed to demonstrate that the
prosecutor‟s statement constituted misconduct.
       Because we have found no errors, the cumulative error doctrine does not apply.
                                                 III.
                                        CONCLUSION
       Castillo failed to establish that the district court had a duty to inquire into a potential
conflict of interest and, as such, did not show a violation of his Sixth Amendment right to
conflict-free counsel. Castillo failed to preserve for appeal his argument that the prosecutor
committed misconduct in his initial closing argument. Moreover, the prosecutor‟s statement did
not constitute fundamental error. The prosecutor‟s statements in rebuttal argument did not
constitute prosecutorial misconduct. The cumulative error doctrine does not apply in this case.
Accordingly, Castillo‟s judgment of conviction and sentence entered thereon are affirmed.
       Judge GUTIERREZ and Judge MELANSON, CONCUR.




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