Sаmuel Mitchell Abernathy was convicted by a White County jury of the January 2008 murder of Darrin Ramey and sentenced to life imprisonment. On motion for new trial, the trial court, while rejecting most of Abernathy’s contentions, granted the motion on the sole ground that Abernathy’s public defender had rendered ineffective assistance due to a conflict of interest inhering in his representation of Abernathy. The State obtained a certificate of immediate review and filed an application for interlocutory appeal challenging the award of a new trial, which this Court granted. Abernathy then filed a cross-appeal, contesting the trial court’s rejection of his other alleged grounds for reversal. For the reasons set forth below, we find that the trial court erred in granting Abernathy a new trial and therefore reverse and remand for further proceedings in the trial court. 1
Case No. S11A0314
1. The trial court granted Abernathy’s motiоn for new trial based on the finding that Abernathy’s public defender, Charles Brown, was employed in the same circuit public defender’s office as initial counsel for Abernathy’s co-arrestee in the case, John Geren. Geren, Abernathy’s then-romantic partner, was a witness to the altercation from which Abernathy’s conviction arose and fled the scene with Abernathy in the aftermath thereof; the two men were apprehended while fleeing and plаced under arrest later on the day of the crime.
As found by the trial court, the undisputed evidence reflects that within hours of the men’s arrest on January 10, 2008, Neil Smith of the Enotah Circuit Public Defender’s Office visited Geren at the jailhouse, confirming Geren’s desire for legal representation, and
Abernathy, who had initially indicated he would retain private counsel, ultimately came to be represented by Brown, who entered an appearance on Abernathy’s behalf in April 2008. Brown had been sworn in as the Enotah Circuit Public Defender in January 2008, on the very day Smith withdrew his representation of Geren. Smith left the employ of the Enotah public defender’s office within weeks of Brown’s entry of appearance on Abernathy’s behalf. Brown and Smith thus never communicated regarding the case, and it is undisputed that Brown had no knowledge that his office had briefly represented Geren in the case until well after his representation of Abernathy had ended.
Based on these facts, the trial court, analogizing lawyers within a single circuit public defender office to lawyers within a single law firm, found that Brown was laboring under an actual conflict of interest in his representation of Abernathy, that prejudice therefrom must be presumed, and that Abernathy had thus received ineffective assistance of counsel. While we agree with the trial court that Abernathy and Geren’s interests in the case were adverse to one another’s and would thus — assuming, arguendo, that the rules for imputing conflicts operate within a single circuit public defender office in the same manner as those within a law firm
2
— give rise to a conflict, we disagree with the cоnclusion that Abernathy need not show any actual harm to prove a Sixth Amendment violation in these circumstances. See generally
Dockery v. State,
Rather, as we have previously held, “a defendant ... asserting ineffective assistance of counsel based on an actual confliсt of interest [must] demonstrate that the conflict of interest existed and that it ‘significantly affected counsel’s performance.’ ” (Footnote omitted.)
Edwards v. Lewis,
the critical question is whether the conflict significantly affected the representation, not whether it affected the outcome of the underlying proceedings. That is precisely the difference between ineffective assistance of counsel claims generally, where prejudice must be shown, and ineffective assistance of counsel claims involving actual conflicts of interest, which require only a showing of a significant effect on the representation.
(Emphasis in original.) Id. at 351 (2). A significant effect on the representation may be found, for example, where counsel is shown to have refrained from raising a potentially meritorious issue due to the conflict, see id. at 350 (2); where counsel negotiates a plea bargain for more than one defendant in a case conditioned on acceptance of the plea by all such defendants, see
Tarwater v. State,
In this case, the trial court expressly noted the absence of any evidence that the conflict “colored counsel’s actions during the trial.” Indeed, given that Brown was completely unaware of Smith’s brief past representation of Geren, he neither was privy to any confidential communications between Smith and
Case No. S11X0315
2. In his cross-aрpeal, Abernathy claims error in the trial court’s rejection of several other grounds on which he seeks a new trial. Viewed in the light most favorable to the verdict, the evidence adduced at trial established as follows. 3 Shortly before midnight on the evening of January 9, 2008, Abernathy, who had been drinking for several hours, and Geren went to the Southside Bar to play pool. Abernathy had previously been banned from the premises of the bar, and thus shortly after the men’s arrival the bartender asked them to leave. During the exchange with the bartender, in which Abernathy implored her to allow them to stay, Ramey and his friend Luther Mize approached and reiterated the bartender’s request that they leave. Abernathy responded by suggesting they “take this out in the parking lot”; Geren then urged Abernathy to leave with him and turned to go. Ramey followed the two men to the door; Mize, who had become agitated, was being restrained by friends but called out to Ramey not to go outside. As Ramey followed Abernathy into the parking lot, Abernathy turned around, withdrew a knife from his pocket, and stabbed Ramey in the chest. Abernathy and Geren ran to their truck and sped off but were apprehended a short time later. Ramey later died from his wound, which was inflicted with such force that, according to the medical examiner, the victim’s sternum was bisected.
Both Geren and one other eyewitness, Edsel Thomas, testified to seeing Abernathy lunge at Ramey. Thomas further testified that he did not see Ramey make any aggressive moves toward Abernathy. Geren also testified that, earlier on the evening of the crime, Abernathy had claimed to have his “Smith & Wesson” in his pocket. In addition, Geren testified that, while in the truck fleeing the bar, Abernathy instructed Geren to hit him in the face, which Geren did, in an effort to make it appear that Ramey had been the aggressor. When they realized police were following them, Abernathy threw the knife out the window of the truck.
After being apprehended, Abernathy made unsolicited remarks about the crime in the police patrol car, admitting that he had stabbed the victim but claiming he had done so only in response to the victim’s aggression. While in a jail holding cell prior to his arrest, Abernathy made additional spontaneous statements, which were recorded and played for the jury, also to the effect that he had stabbed Ramey in self-defense.
The evidence was sufficient for a rational trier of fact to find Abernathy guilty beyond a reasonable doubt of the malice murder and aggravated assault of the victim.
Jackson v.
Virginia,
3. Abernathy contends that the trial court erred in its disposition as to a second alleged conflict of interest issue on the part of Brown. The record reflects that, immediately prior to his appointment as Enotah Circuit Public Dеfender, Brown served as Helen’s city
attorney
4
and simultaneously as its municipal court solicitor. The record further
As discussed in Division 1, in order to establish ineffective assistance arising from a conflict of interest, a defendant must show the existence of an actual conflict that adversely affected counsel’s performance. We have previously held that the bare fact that defense counsel was employed as a solicitor and/or city attorney simultaneous with his representation of the defendant within the jurisdiction he served is insufficient by itself to satisfy this burden of proof. See
Wharton v. Thomas,
4. Abernathy also contends that, even apart from the alleged conflicts of interest, counsel’s performance at trial fell below that of a reasonably competent attorney in several respects. To рrove such ineffective assistance of counsel', a defendant “must show that his attorney’s performance was deficient and that the deficiency so prejudiced him that a reasonable probability exists that, but for counsel’s errors, the outcome of his trial would have been different. [Cit.]”
Gadson v. State,
(a) Abernathy claims trial counsel performed deficiently by failing to investigate and present evidence in support of a mental health defense. Spеcifically, Abernathy points to evidence regarding traumatic head injuries he had previously sustained; his addiction to prescription medications; his multiple psychiatric hospitalizations; and his diagnoses with major depression, anxiety disorder, generalized panic disorder, bipolar disorder, schizophrenia, and other conditions. However, “[mjental abnormality, unless it amounts to insan
ity, is not a defense to a crime.”
Wallace v. State,
(b) Abernathy next asserts that trial counsel failed to develop a cohesive defense strategy and otherwise to pursue a vigorous defense, a claim which is belied by the record.
(c) Abernathy next contends that trial counsel rendered ineffective assistance by failing to particularize Abernathy’s motion to suppress physical evidence and custodial statements. With respect to the physical evidence, the knife used tо stab the victim was found by police on a public right of way during a search of the route from which Abernathy and Geren fled the scene, and Abernathy’s clothes, which were stained with blood later determined to be the victim’s, were seized from his person upon his detention. See
Smith v. State,
(d) Abernathy complains that trial counsеl failed to object when the State elicited evidence regarding Abernathy’s homosexual relationship with Geren. Such an objection would have been meritless, given that the State was entitled to establish the relationship between Abernathy and Geren, a key witness, see OCGA § 24-9-68, and that the State did not attempt to belabor the issue beyond this limited purpose. Moreover, trial counsel had sought through voir dire to eliminate jurors who may have held biases against those practicing homosexuality.
(e) Abernathy also alleges that counsel failed to inform him that he faced a maximum sentence of life without eligibility for parole for 30 years. However, even assuming that trial counsel performed deficiently in this regard, Abernathy cannot establish prejudice from his alleged misapprehension about parole eligibility insofar as there was no evidence the State would have considered a plea deal even if Abernathy had offered to plead guilty.
5. Abernathy also asserts error with respect to the conduct of certain portions of voir dire in a private jury room rather than in open court. Both the Sixth Amendment and the Georgia Constitution, Art. I, Sec. I, Par. XI (a), provide for the right of a public trial to criminal defendants.
Purvis v. State,
The record reflects that the trial court and both the State and the defense аgreed at the outset of voir dire that prospective jurors would be permitted, if they were reluctant to answer questions of a sensitive nature in open court, to so indicate and be afforded the opportunity to answer such questions privately.
[T]his is a very serious case and it’s very important that we get your answers to these questions, that we get full answers from you and we get accurate and truthful answers from you.
And we don’t mean to embarrass anybody in this procedure, so if there is any question that I ask you, rather than not responding to it because it may be embarrassing,
I’m going to try to ask the question in a way that won’t narrow it down too much to anybody.
But rather than answering, if you’ll just raise your hand, and when I ask you, tell me you’d rather take it up in private, and we can do that. But I don’t want you to fail to answer a question or fail to answer a question fully because you think it might be embarrassing to you or you’re uncomfortable аnswering the question. This is a very important case. It’s very important that we know what your answers are to the questions that we ask you.
Various jurors did indicate discomfort with answering certain questions regarding their views on homosexuality and prior arrests, for example, and were questioned individually on these issues in a separate conference room in the presence of the trial judge, the prosecution, and the defense, including Abernathy himself. In these sеquestered sessions, counsel for both parties also questioned some jurors regarding the content of pretrial publicity to which they had been exposed. Thus, this sequestered voir dire was intended to promote candor on the part of prospective jurors — many of whom, as members of a small community, were acquainted with each other and/or one or more of the parties in the case — by minimizing the potential for embarrassment in bеing subjected to fully public questioning on sensitive issues, as well as to avoid tainting the entire jury panel with discussion of pretrial publicity to which only some had been personally exposed, both interests serving the broader purpose of protecting Abernathy’s right to a fair trial.
Though Abernathy’s trial counsel not only acquiesced in but fully endorsed this procedure in furtherance of Abernathy’s right to a
fair
trial, Abernathy’s appellate counsel now attacks the same
procedure as violating Abernathy’s right to a
public
trial. However, as we have recently noted, the right to public trial “ ‘may give way in certain cases to other rights or interests, such as the defendant’s right to a fair trial. (Cit.)’ . .. [Cit.]”
Purvis,
supra,
6. In his final enumeration, Abernathy contends that the trial court erred in deferring decision on his extraordinary motion for new trial. The trial court correctly found it unnecessary to resolve this motion in light of its decision to grant a new trial on other grounds. Accordingly, there was no error in this regard. Hоwever, given this Court’s foregoing determination that Abernathy’s motion for new trial should have been denied in its entirety, the extraordinary motion for new trial will be ripe for disposition on remand.
Judgment affirmed in part and reversed in part, and case remanded.
Notes
Abernathy’s motion to dismiss the State’s appeal on the ground that its brief was untimely is denied.
We note that the propriety of this assumption is currently before us squarely in In re Formal Advisory Opinion No. 10-1, No. S10U1679 (docketed July 1, 2010).
The crime occurred on January 10, 2008. On April 7, 2008, Abernаthy was indicted by a White County grand jury on one count of malice murder and one count of aggravated assault. At the conclusion of a jury trial held November 17-21, 2008, Abernathy was found guilty on both counts. The trial court sentenced Abernathy to life imprisonment for murder and merged the aggravated assault count therein for sentencing purposes. Abernathy’s timely motion for new trial was filed on December 19,2008 and amended a total of six times both before and after the hеaring thereon, which was held March 31 and April 1, 2010. In addition, on April 1, 2010, Abernathy filed an extraordinary motion for new trial based on newly discovered evidence, which the court ultimately declined to rule on after granting the amended motion for new trial.
Brown’s service as city attorney apparently continued, uncompensated, for two months after he became Circuit Public Defender.
Though the author of this opinion vigorously dissented to this holding in Reid, see id. at 489 (Hunstein, C. J., dissenting), this principle is the current law of the State on this issue.