Tolbert v. State
298 Ga. 147
Ga.2015Background
- On January 26, 1996, Shelley Griffin was shot and killed after a confrontation with Leroy Sims; Dewey Sims fired the fatal shot. Terry Gene Tolbert (nephew of Leroy and Dewey) was present, armed, threatened Griffin, and fled with the others.\
- Tolbert was tried jointly with Leroy and Dewey in 1996 and convicted of malice murder and unlawful possession of a firearm during the commission of a felony; sentenced to life plus consecutive firearm terms.\
- Tolbert sought post-conviction relief and an out-of-time appeal; procedural history included multiple motions for new trial and appellate proceedings culminating in this appeal asserting ineffective assistance of counsel.\
- Tolbert’s sole appellate claim: trial counsel concurrently represented Tolbert and Leroy, creating an actual conflict of interest that adversely affected counsel’s performance.\
- At the hearing on Tolbert’s motion for new trial the trial lawyer was deceased; Tolbert and Leroy testified that Leroy paid the lawyer and met with the lawyer alone, and Tolbert said he never met the lawyer outside Leroy’s presence. The trial court discredited key aspects of that testimony.\
- The trial court found no actual conflict that significantly and adversely affected representation; the Supreme Court of Georgia affirmed, concluding Tolbert failed to meet his burden.\
Issues
| Issue | Tolbert’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether joint representation created an actual conflict of interest that deprived Tolbert of effective assistance | Counsel’s concurrent representation of Leroy and Tolbert, combined with Leroy paying counsel and private meetings, created an actual conflict that adversely affected representation | Any potential conflict was speculative; trial court found counsel vigorously represented both clients and no evidence showed adverse effect | No actual conflict shown; Tolbert failed to prove counsel’s representation was significantly and adversely affected |
| Whether counsel failed to seek a favorable plea for Tolbert because of conflict | Counsel did not pursue a plea for Tolbert (or a deal that would have Tolbert testify against Leroy) due to divided loyalty | No evidence counsel failed plea negotiations; no proof prosecutor would have accepted a deal; Tolbert offered no evidence he would have meaningfully testified against Leroy | Tolbert failed to show plea negotiations were compromised by conflict |
| Whether counsel should have urged a defense that Tolbert was less culpable than Leroy | Counsel failed to argue comparative culpability to avoid highlighting Leroy’s greater blame | Counsel pursued a common defense (self-defense by shooter; Tolbert/Leroy not parties) that was compatible for both defendants and reasonable strategically | Failure to emphasize comparative culpability did not demonstrate an actual conflict or a superior defense that was blocked by conflict |
| Whether failure to present evidence of Tolbert’s mental impairment or withdrawal was due to conflict | Counsel did not present head-injury/impairment evidence or stronger withdrawal proof because of divided loyalties | Evidence of impairment or withdrawal was weak; no proof counsel knew of impairment; presenting Tolbert would have exposed him to cross-examination and may not have helped | No showing these omissions were caused by an actual conflict of interest |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for reviewing sufficiency of evidence)
- Cuyler v. Sullivan, 446 U.S. 335 (claims of conflict in joint representation require showing an actual conflict that adversely affected counsel’s performance)
- Burger v. Kemp, 483 U.S. 776 (joint representation not per se unconstitutional; effect on counsel’s performance is critical)
- Mickens v. Taylor, 535 U.S. 162 (actual conflict defined as one that affected counsel’s performance, not merely theoretical)
- Redd v. State, 264 Ga. 399 (trial court must ensure any waiver of conflict is knowing, intelligent, and voluntary)
- Mamedov v. State, 288 Ga. 858 (example where joint representation produced an actual conflict affecting performance)