Winstоn M. HOLLOWAY, Ray Lee WELCH and Gary Don CAMPBELL v. STATE of Arkansas
CR 76-25
Supreme Court of Arkansas
July 19, 1976
As Amended on Denial of Rehearing September 20, 1976
539 S.W. 2d 435
Affirmed.
Roy, J., not participating.
Harold L. Hall, Public Defender, for appellants.
CARLETON HARRIS, Chief Justice. Appellants, Winston Holloway, Ray Lee Welch and Gary Don Campbell, were charged by information with robbery of the Leather Bottle Restaurant in Little Rock on June 1, 1975, and with the use of a firearm in committing the offеnse. The three men were further charged with the rape of two female employees of the restaurant. Following a jury trial, all three men were convicted, with punishment for each set at 21 years imprisonment for the robbery, and life imprisonment for rape. From the judgment so entered, Holloway, Welch, and Campbell appeal, arguing several points for reversal.
For convenience, we first discuss the last point which is simply that the court erred in not giving instructions for directed verdicts of acquittal. While appellants concede that any possible error was cured by the giving of the state‘s instruction defining an accessory, we proceed to a discussion of the contention as a matter of рroviding background for other points asserted.
Other than the identity of the perpetrators, the facts about the robbery-rapes are not disputed. After the closing of the Leather Bottle on June 1, around 1:30 - 1:45 A.M., five employees had remained in the restaurant, and were preparing to leave. The employees were Donald Henry, Michael Garrett, David Carroll, and two women. All five were in the restaurant office in the lower part of the building.
As one of the women (hereafter called “first woman“) began to leave, she heard someone running down the stairs toward the office. When she looked, she saw a man — whom she subsequently identified as appellant Holloway — coming down the stairs, brandishing a .45 caliber аutomatic pistol. She also saw two other men at the top of the stairs. Holloway forced her back into the office at gunpoint, where he herded her and the four other employees against the wall, threatening to kill them if they moved or opened their eyes. At this point one of the employees, Donald Henry, saw appellant Welch, also in the office, rifling the other woman‘s (hereafter called “second woman“) purse.
Subsequently, after getting all the available cash from the safe, the three men again made all the employees face the office wall, eyes closed, while they “shot out” the telephones with gunshots. The employees were then grouped intо the restaurant‘s walk-in freezer, which was then locked. After about an hour — around 3:30 A.M. — one of the employees, Michael Garrett, escaped from the freezer by a small service opening, and released the others. The police were called, and the women taken to a doctor.
Because the robbers kept them facing the wall, and instructed them to keep their eyes closed, none of the employees were able to identify all three men. The first woman and Donald Henry identified Holloway and Welch. Michael Garrett could identify only Holloway. The second woman and David Carroll identified Holloway and Campbell.
In addition to the testimony of the five employees, the statе also presented evidence of a statement given by appellant Campbell to two police officers, Paul Plummer and Jerry Best. The officers testified that on July 4, 1975, they received information that appellant Campbell was being held in the city detention center, under the alias Robert Hill. They removed Campbell from detention, showed him a warrant charging him with robbery, and began taking him to an interrogation room. At this point both officers testified Campbell spontaneously said, “I haven‘t raped anyone. I will tell you about the robbery.” The officers said that they cautioned Campbell to stay silent, because he had not been warned of his rights, but that he immediately volunteered the
Thereafter Campbell was wаrned of his constitutional rights, and both officers stated that he signed a “rights waiver,” which was admitted into evidence. Plummer and Best testified that Campbell then told them that he, Welch and Holloway had robbed the establishment. The officers said that Campbell admitted complicity in the robbery, but denied raping anyone, stating that he had held a rifle and had stood at the top of the stairs. In the oral statement Campbell said that the men had stolen about $2,000.00, and that his share of the money was approximately $700.00. It is apparent that, aside from the concession, the court did not err in refusing to instruct directed verdicts of acquittal.
Appellants contend that the trial court “erred in refusing to grant a mistrial when the defendants were brought in court before the jury in their jail uniforms in violation of their rights under the Sixth and Fourteenth Amendments to the Constitution.” Before the trial began, counsel for appellants moved for a mistrial, alleging that appellants were “paraded through the courtroom in their jail uniforms where all of the prospective jurors were seated.” The record does not reflect whether any of the prospective jurors ever saw appellants prior to the trial. Nor does the record reflect the exact attire of the men except that they were dressed in matching blue trousers and blue shirts.
Appellants’ argument has no merit, for several reasons. First, appellants rejected, twice, the trial court‘s offer to allоw them to change clothes. The trial court gave the appellants this opportunity before the trial began and before the actual selection of the jury. Therefore, appellants may be deemed to have waived the point. Finally, in the recent case of Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976), the U.S. Supreme Court held that a defendant‘s constitutional rights were violated only when he was compelled to wear identifiable prison clothing at his trial. The court stressed that such attire must be “distinctive” and “identifiable.”
It is asserted that the court erred in refusing to grant appellants’ motion for a severance and in not appointing
Appellants’ counsel renewed the motion for sepаrate counsel at the trial, stating that “one or two of the defendants may testify and, if they do, then I will not be able to cross-examine them because I have received confidential information from them.” The trial court denied the motion.
First, let us review the contention that a severance should have been granted. Let it be pointed out that appellants demonstrate no prejudice from the joint trial. As previously noted, three grounds were alleged in the motion for severance. None of these grounds materialized during the trial. Moreover, the trial court properly limited the use of Campbell‘s statement against the co-defendants by deleting all references by name to the other two defеndants, and substituting the words, “two other people” and “two other fellows.” This procedure fully complied with this court‘s requirements. Gammel and Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976); Stewart and McGhee v. State, 257 Ark. 753, 519 S.W. 2d 733, cert. denied, 423 U.S. 859. In fact, it was counsel for appellants who stated before the jury that the confession implicated the two co-defendants.
As this court has held numerous times, “[t]he granting of a severance is within the sound discretion of the trial court.” Keese and Pilgreen v. State, 223 Ark. 261, 265 S.W. 2d 542; Vault v. Adkisson, 254 Ark. 75, 491 S.W. 2d 609. We find no abuse of discretion in the instant case.
Next, let us review the point that separate counsel should have been appointed. The applicable law was discussed in Trotter and Harris v. State, 237 Ark. 820, 377 S.W. 2d 14,
“Both men were сharged with the same offense, which grew out of the same occurrence. The only evidence, which in any manner could be said to indicate a conflict of interest, was the statement of Harris made to the sheriff that, though he drove the car, he did not actually rape the prosecuting witness. This might indicate that he was only an accessory, but the distinction between principals and accessories was abolished in this state in 1936. See
Ark. Stat. Ann. § 41-118 (1947) . Accordingly, even under this statement, if Harris were guilty, he was guilty as a principal.”
The court also noted that the trial court had correctly limited the use of the statement, and that both Harris and Trotter received the same sentence, indicating that neither had been prejudiсed as against the other by the statement.
Thus, the instant case presents facts identical in important respects to Trotter. Appellants “were charged with the same offense, which grew out of the same occurrence.” Although Campbell‘s statement did deny any involvement in the rapes, as did the statement in Trotter, this denial had no effect on his guilt as a principal. The trial court likewise limited the use of the statement against the co-defendants, and all appellants did, in fact, receive the same sentence. Under the Trotter standard, therefore, no conflict of interest has been shown.
This conclusion is in accordance with the overwhelming majority of courts that have ruled upon the issue — i.e., the record must show some material basis for an alleged conflict of interest, before reversible error occurs in single representation of co-defendants.1 In a particularly definitive case, United
“It has been firmly established that joint representation of codefendants is not per se violative of the Sixth Amendment. [Citations omitted.] Expressed another way, no reversible error is committed by the district court in assigning a single attorney to represent two or more codefendants in a pending criminal action, absent evidence of an actual conflict of interest or evidence pointing to a substantial possibility of a conflict of interest between the codefendants. [Citations omitted.] Where courts have found such evidence on the appellate record, they have not hesitated to direct a reversal for a new trial. [Citations omitted.]
“... [T]here is nothing pointing to an actual or substantial possibility of a conflict of interest between appellant and his codefendant, Brinkley. We need go no further. A reversal here would be tantamount to a holding that joint representation is illegal per se, a result not mandated by the Sixth Amendment, Glassen [v. United States, 315 U. S. 60], or its progeny.”
Similarly, in United States v. Gallagher, 437 F. 2d 1191, the Seventh Circuit, confronted with the same argument, found no conflict of interest, and stated:
“The existence of a conflict of interest, to warrant [reversal], must be founded on something more than mere speculation or surmise. We perceive nothing in this record which demonstrates the existence of any real conflict of interest between the defendants.”
Research discloses at least thirty-two jurisdictions that adhere to this standard, requiring some factual demonstration of a conflict of interest.
By contrast, a small minority of jurisdictions (five) appear to have adopted a much more liberal standard first applied by the District of Columbia Court of Appeals in United States v. Lollar, 376 F. 2d 243. Under the Lollar rule, the trial court bears the burden of investigating any potential
Although this court referred to the “informed speculation” rule when reversing a conviction in Shelton v. State, 254 Ark. 815, 496 S.W. 2d 419, it cannot be presumed that Shelton overruled Trotter and Harris v. State, supra. In fact, the Shelton opinion does not discuss, or even mention Trotter. In Shelton, there were no co-defendants. A witness, Joe Hilderbrand, had been a defendant but the case against him had been dismissed. It was contemplated that the state might call Hilderbrand as a witness and counsel for Shelton stated that he had represented Hilderbrand, had received confidential information from him, and would not feel free in cross-examining Hilderbrand if he were called to testify. A principal difference in that case and the one at bar is that Shelton never did take the stand and testify.
A recent case, United States v. Jeffers, 520 F. 2d 1256 (7th Cir.), cert. denied, 96 S. Ct. 805 (Jan. 13, 1976), discusses the proper procedure to be followed when an alleged conflict of interest may arise because counsel possesses confidential information. The opinion was written by Justice (then Judge) John Paul Stevens. In Jeffers, counsel for multiple defendants asserted that he was unable to fully cross-examine a prosecution witness whom his law firm had previously represented. Counsel alleged that because of this prior representation, he
On appeal of the ensuing convictions, the Seventh Circuit in Jeffers approved the trial court‘s ruling. Judge Stevens first noted that counsel “made no effort to disclose the privileged information to the court in camera to enable the court to evaluate its relevance.” Reviewing the scope of the attorney-client relationship, the court further stated that “[t]he risk that an item of confidential information might be misused does not create a conflict of interest which disqualifies an attorney from conducting any cross-examination at all.” The court concluded:
“Thus, if defense counsel was concerned that he might be using confidential information improperly, he could have outlined the nature of the information to the judge and, if necessary, made an in camera disclosure to him. On the basis of such a disclosure it might have become apparent that the privilege was either inapplicable or had been waived by the witness. Or, it might have been clear that the information was not usable for other evidentiary reasons.”
In the instant case, no disclosure of the nature of the information acquired was outlined to the judge. After all, without any reflection on present counsel, a very honorable man and competent lawyer, requiring the granting of a motion to appoint separate counsel purely on the basis of a motion stating that confidential information had been received from the defendants, might well eventuate in an imposition on the court and could result in the mandatory appointment of additional counsel in every case where multiple defendants were involved; the contingencies set forth in Jeffers might well dispose of the issue.
Summarizing, a review of the recоrd establishes that no prejudice resulted, in fact, to appellants. As the state correct-
Appellants assert that the trial court erred by admitting into evidence the “rights waiver” allegedly signed by Campbell, and the oral statement allegedly made by him to police. Campbell denied signing the form and making the statement, contending that he was under the influence of alcohol and narcotics at the time.
In reviewing a trial court‘s ruling on the admissibility of a statement, this court makes an independent determination based on the totality of the evidence, but reverses the trial court only when its ruling is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. The ruling of the trial court in the instant case clearly is not against the preponderance of the evidence. Both officers who were present during Campbell‘s interrogation testified that he was not visibly under the influence of drugs or alcohol, that he could walk and talk normally, and appeared sober. Both officers said that they could smell alcohol on Campbell, and gave him a “breathalyzer” test, but that Campbell‘s mental faculties were not apparently impaired. The conflicting testimony posed an issue of credibility for the trial court, and from the appellate record it cannot be said that error was committed in admitting the rights form and oral statement.
Appellants argue that the trial court errеd by refusing to allow their counsel to ask one of the officers who had interrogated Campbell about the statutory presumption on
The prima facie presumption of intoxication set forth in
Finally, it is asserted that “The court erred in permitting officers to testify that they took a picture of defendant, Campbell, and a warrant for his arrest when they went to the jail to talk to a man by the name of Robert Hill.” During the examination of Jerry Best, one of the officers who had questioned Campbell, Best testified that he and Plummer had taken “a picture of Campbell and a warrant that we had for him” when they went to retrieve him from the detеntion center.2 Appellants’ counsel objected and requested a mistrial, which the trial court denied. Appellants contend that the refusal of a mistrial was error, because the officer‘s testimony allegedly created “an impression to the jury that it was a mug shot of the defendant and could lead them to believe that he had a long record.”
“Declaring a mistrial is an extreme remedy which should be granted only where there has been an error so prejudicial that justice could not be served by continuation of the trial. [Citation omitted.] It should not be granted when any possible prejudice could be removed by an admonition to the jury. [Citation omitted.] It certainly was not called for in this case. Appellants did not seek an admonition to the jury to disregard the questions or any of their implications.”
Still further, Plummer had already earlier testified to the same facts without objection, and any possible error would be rendered harmless.
All objections made during the trial by appellants have been examined and found to contain no merit. Finding no reversible error on the whole case, the judgment is affirmed.
It is so ordered.
GEORGE ROSE SMITH, FOGLEMAN and BYRD, JJ., dissent.
CONLEY BYRD, Justice, dissenting. I would reverse this case because the trial court forced the public defender to represent all three defendants after he, in accordance with American Bar Association Standards For Criminal Justice, The Defense Function § 3.5(a)(1971), informed the court that, because of a confidential communication from his clients, there was a conflict of interest among them. The record with respect to the conflict issue shows the following:
“MR. HALL: At this time I would like to renew that motion on the ground that one or two of the defendants may testify and, if they do, then I will not be able to cross-examine them because I have received confidential information from them.
THE COURT: I don‘t know why you wouldn‘t. Overruled. Save your exceptions.
...
MR. HALL: I am in a position now where I am morе or less muzzled as to any cross-examination.
THE COURT: You have no right to cross-examine your own witness.
MR. HALL: Or to examine them.
THE COURT: You have a right to examine them, but you have no right to cross-examine them. The prosecuting attorney does that.
MR. HALL: If one takes the stand, somebody needs to protect the other two‘s interest while that one is testifying, and I can‘t do that since I have talked to each one individually.
*
*
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THE COURT: You are overruled. Each defendant said he wants to testify, and there will be no cross-examination of these witnesses, just a direct examination by you.”
The record shows that all defendants testified in their own behalf. The following took place when the defendant, Welch, testified:
“DEFENDANT HOLLOWAY: Your Honor, are we allowed to make an objectiоn?
THE COURT: No, sir. Your counsel will take care of any objections.
MR. HALL: Your Honor, that is what I am trying to say. I can‘t cross-examine them.
THE COURT: You proceed like I tell you to, Mr. Hall.
You have no right to cross-examine your own witnesses anyway.”
The oath administered to lawyers when they receive their license to practice law before this court requires each lawyer to affirmatively answer that “I will maintain the confidence and preserve inviolate the secrets of my client....” Disciplinary Rules DR 4-101(B) of the Code of Professional Responsibility, adopted by this court provides:
“(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(2) Use a confidence or secret of his client to the disadvantage of the client.
(3) Use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.”
In the American Bar Association Project on Minimum Standards for Criminal Justice, Providing Defense Services, we find the following with reference to the professional independence of appointed defense counsel.
“1.4 Professional independence.
The plan should be designed to guarantee the relationship between lawyer and client. The plan and the lawyers serving under it should be free from political influence and should be subject to judicial supervision only in the same manner and to the same extent as are lawyers in private practice. One means for assuring this independence, regardless of the type of system adоpted, is to place the ultimate authority and responsibility for the operation of the plan in a board of trustees. Where an assigned counsel system is selected, it should be governed by such a board. The board should have the power to establish general policy for the operation of the plan, consistent with these standards and in keeping with the standards of professional conduct. The board should be precluded from interfering in the conduct of
particular cases.
Commentary
a. Integrity of the professional relation
A system which does not guarantee the integrity of the professional relation is fundamentally deficient in that it fails to provide counsel who have the same freedom of action as the lawyer whom the person with sufficient means can retain. Inequalities of this nature are seriously detrimental to the fulfillment of the goals of providing counsel. They are quickly perceived by those who are being provided representation and may encourage cynicism toward the justness of the legal system and, ultimately, of society itself. Much of the dispute concerning the merits of various systems has centered on their capacity to guarantee professional independence. The study made by the Special Committee of the Association of the Bar of the City of New York and the National Legal Aid Association concluded that the necessary independence could be guaranteed under any type of system, from public defender to assigned counsel, if and only if the system is properly insulated from pressures, whether they flow from an excess of benevolence or from less noble motivations. See EQUAL JUSTICE FOR THE ACCUSED 61, 67, 71, 74-75. The importance of assuring the undivided loyalty of defense counsel to his client has been emphasized in previously adopted standards.”
To sustain its illogical position that “the record must show some material basis for an alleged conflict of interest, before reversible error occurs in single representation of co-defendants,” the majority mistakenly rely upon Trotter and Harris v. State, 237 Ark. 820, 377 S.W. 2d 14 (1964); United States v. Williams, 429 F. 2d 158 (8th Cir. 1970); United States v. Gallagher, 437 F. 2d 1191 (7th Cir. 1971); United States ex rel Robinson v. Housewright, 525 F. 2d 988 (7th Cir. 1971); State v. Jeffrey, 163 Mont. 92, 515 P. 2d 364 (1973); and United States v. Jeffers, 520 F. 2d 1256 (7th Cir. 1975).
In Trotter and Harris v. State, supra, the issue was not rais-
In United States v. Williams, supra, upon which the majority relies, the defendants were making a post-conviction attack upon their guilty pleas. The record there shows that both defendants had escaped from the Iowa prison at the same time and that they were arrested together. When they were brought before Judge Duncan for arraignment the appointed cоunsel raised the possibility of a conflict of interest. In doing so appointed counsel stated: “At this time, Your Honor, I know of no conflict but I am saying that the conflict may arise in the future.” When Judge Duncan asked, “Is there anything, any statement that come from [the defendants] that indicates a conflict of interest?” The attorney responded, “Not at the present time.” Thus the Eighth Circuit was correct in asserting that the post-conviction conflict of interest assertion was without merit. However, such holding is not authority for saying that a conflict arising from a confidential communication to appointed counsel should be denied when the matter is brought to the attention of the court before trial. In fact the very emphasis of thе court to the proposition that the motion was not made upon a confidential communication would indicate that the court would require representation by different counsel should that situation arise.
In United States v. Gallagher, supra, the court had appointed separate counsel for each defendant. Subsequently, the defendants employed single counsel to represent both. When the evidence showed that one of the defendants was the dominant member of the conspiracy, the lawyer suggested to the court that he didn‘t know, “whether I should let Tom Gallagher go at this time and concentrate on the lack of evidence against Neil Gallagher or whether I should concentrate on the [evidence] аgainst Neil and pound that in front of the jury.” The court there pointed out that the existence of a
The majority‘s reliance upon United States ex rel Robinson v. Housewright, supra, is totally misplaced. There Robinson had entered a bargained plea of guilty to murder and received a reduced sentence. He sought to raise the conflict of interest of his appointed counsel in a post-conviction hearing. However, the appointed counsel testified that he knew of no conflict of interest. In pointing out that Robinson was entitled to no relief the court stated:
“... The record discloses that the court appointed attorney had not ascertained the presence of a disabling conflict. Nor does anything suggest that he would not have brought to the attention of the court the existence of such a conflict. ... [citing § 3.5(a) ABA Standards For Criminal Justice, supra.]”
The majority‘s reliance upon State v. Jeffrey, supra, is not supported by the facts there involved nor the reasoning of the Montana Court. Both defendants there were tried together and as pointed out by the court:
“Both hired and retained the same counsel to represent them in all preliminary matters and at trial. Counsel was not appointed, or imposed upon either of them — he was retained by the defendants. Prior to this appeal neither of the defendants had claimed he was denied effective counsel, but now, after conviction, they each contend that since they were represented by the same counsel they each were denied their right to effective counsel.”
The Montana Court first stated that in determining the conflict of interest issue, it followed the reasoning set forth in Kruchten v. Eyman, 406 F. 2d 311 (9th Cir. 1969), which provides:
“In considering the legal aspect of the conflict of interest claim, we start with the premise that if a conflict
of interest actually exists the court will not weigh or determine the degree of prejudice which may result before granting relief. Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942). However, until an actual conflict is shown to exist or can be reаsonably foreseen an attorney may, in good faith, represent both defendants.”
The reason for denying relief when the conflict issue is raised for the first time on appeal was stated by the Montana Court as follows:
“... The whole problem directs itself ultimately on appeal to the adequacy or inadequacy of defense counsel and in the eyes of this Court such adequacy or inadequacy of counsel should not be tested by the greater sophistication of appellate counsel who did not try the case, nor should the test be made on the basis of applying different defense tactics, perhaps of doubtful efficiency, after leisurely studying the transcript of the trial....”
Of course in the cаse before us we have the statement of the Public Defender that a conflict would arise in the event the defendants took the witness stand in their own behalf. He made that statement because of confidential communications he had received from his clients.
Finally the majority make much of the fact that the now Justice John Paul Stevens wrote the opinion in United States v. Jeffers, 520 F. 2d 1256 (1976). That case does not even involve a conflict of interest arising from the representation of codefendants. There retained counsel, Cohen of the law firm of Cohen & Thiros, represented a number of defendants termed “The Family” who were indicted for a “highly-structured and on-going narcotics distribution network in Gary, Indiana.” On the sixth day of trial the government brought forth as a witness one James Berry. At that time Cohen informed the court that Berry had previously been represented by one of his law partners in a prior state court homicide case. Cohen admitted that his law firm did not then represent Berry, that he did not personally know Berry, and that he personally had had no confidential communication from
“... We also emphasize at the outset that this is not a case involving an existing personal relationship between Cohen and the witness Berry. Consequently, the numerous cases involving an on-going relationship between an adverse witness and a lawyer are inappropriate.”
In a footnote following the above statement it is stated:
“The courts have frequently held that the existence of such a relationship, with the inherent hesitancy of counsel to completely cross-examine a current client, creates a very real conflict of interest and requires a mistrial if the conflict is disclosed, or a new trial, if the conflict is discovered only later, see Castillo v. Estelle, 504 F. 2d 1243 (5th Cir. 1974), ...”
Our own case of Shelton v. State, 254 Ark. 815, 496 S.W. 2d 419 (1973), falls in the category of the cases mentioned by Justice Stevens in the footnote, supra.
The majority‘s assertion that the Public Defender should tell all of his confidential communications to the trial judge to protect some of his clients could prove very embarrassing to the public defender‘s other cliеnts if the jury should become hung on the amount of punishment and leave the punishment to be fixed by the trial court. Under the majority opinion appointed counsel can never maintain inviolate the confidence of his clients.
For the reasons stated I respectfully dissent.
GEORGE ROSE SMITH and FOGLEMAN, JJ., join in this dissent.
Notes
“A mere possibility that different interests represented by an attorney might develop a conflict is not sufficient to disqualify him.”
The court held that the interests must be actually adverse.