113 Wash. App. 226 | Wash. Ct. App. | 2002
— Paramjit Singh Dhaliwal shot and killed fellow Farwest cab driver Jasbir Bassi. At the time of Dhaliwal’s murder trial, his defense attorney was simultaneously representing several defense witnesses in a shareholder action against Farwest. His attorney had also previously represented a key prosecution witness in a criminal matter for which Dhaliwal was also charged. Dhaliwal was convicted of premeditated murder in the first degree and carrying a concealed handgun. His principal argument on appeal is that his Sixth Amendment right to a conflict-free attorney was violated when the trial judge failed to adequately inquire into the potential conflicts. We agree that the judge failed to conduct an adequate inquiry into the potential conflicts, but affirm his conviction because Dhaliwal has not made a showing that the potential conflict adversely affected his attorney’s performance.
I
On December 28, 1999, Paramjit Singh Dhaliwal shot and killed fellow Farwest cab driver, Jasbir Bassi. At the time of the shooting, Dhaliwal was closely affiliated with the Farwest company board of directors and was a member of the grievance committee. During the board’s 1999 tenure, Dhaliwal and the board instituted controversial changes which created serious disputes among Farwest shareholder drivers.
The internal politics created a deep rift between the two factions of Farwest. The 1999 board, with which Dhaliwal was aligned, was at odds with the 1998 board that Bassi supported. The bitter conflict among shareholders and drivers frequently resulted in violence.
Dhaliwal bought a 9 mm semiautomatic handgun one day before the shooting. At the firearms store, he said that
Earlier on the day of the shooting, Dhaliwal and his friend Harbhajan Singh assaulted Ranjit Kandola, who opposed Dhaliwal’s policies on the grievance board and the actions of the directors. Later, Dhaliwal told his good friend and cousin, Gurinder Grewal, that he was happy he had hit Kandola and “it felt like a victory for him.”
Bassi and several other Farwest drivers opposed to Dhaliwal and the 1999 board gathered to discuss the morning’s confrontation. Kandola explained to the group that Dhaliwal had assaulted him, and Bassi grew increasingly upset. While the group was gathered, one of the men spotted Dhaliwal’s cab. Bassi and four others borrowed a car because they did not want to be recognized in their own, and began pursuing Dhaliwal. The remaining two followed in a second car. Three of the people with Bassi had experienced violent confrontations with Dhaliwal in the past.
Bassi and his group followed Dhaliwal’s cab to the Westin Hotel in Seattle, where Dhaliwal dropped off his fare. Grewal, Dhaliwal’s friend, was waiting to meet him there. The group followed the cab until it stopped at a downtown intersection. Bassi then got out of the car and approached Dhaliwal. Eyewitnesses reported that when Bassi approached Dhaliwal’s cab he began screaming and pounding his fists on the cab and waiving his arms. Dhaliwal responded by rolling down his window and firing his gun at Bassi, who was unarmed. Bassi then returned to his car and said, “I’ve been shot. He shot me. Call 911. Call the police.” Dhaliwal stepped out of his cab and fired five or six more shots at Bassi.
Dhaliwal then fled the scene and abandoned his cab. Grewal also fled the scene, but was stopped by police a short time later. He gave a statement to police later that day, in which he claimed that there had been threats to kill
Bassi died two days later from his gunshot wound. Dhaliwal remained a fugitive for several months before turning himself in. He was released on bail pending trial.
After his release, Dhaliwal moved into the home of Grewal. Dhaliwal told Grewal that he had wanted to shoot Bassi in the head because Bassi had used the “F” word and had “disrespected” him. He also told Grewal that because Bassi had tried to take off his turban, an insult in the Sikh community, he could shoot him.
Dhaliwal’s friendship with Grewal turned sour when it was reported that Dhaliwal was involved in distributing a letter reporting the alleged infidelity of Grewal’s wife. The situation between the two deteriorated, resulting in Dhaliwal threatening Grewal’s life. At trial, Grewal testified for the State.
At the time of Dhaliwal’s trial, defense attorney Antonio Salazar was simultaneously representing Gurcharan Saidpur, Harbhajan Sidhu, Resham Singh, and Surinder Sohal in a shareholder action against Farwest contesting their termination by the 2000 board. Saidpur and Singh testified for the defense at Dhaliwal’s murder trial. Salazar had previously represented Harbhajan Sidhu and Grewal on an assault charge in which Dhaliwal was a codefendant. In that case Dhaliwal, Sidhu, and Grewal were charged with felony assault against Avtar Singh. The State presented evidence that that matter was dismissed after Singh had been intimidated and threatened by Dhaliwal’s supporters and failed to appear at trial.
Dhaliwal was charged with premeditated murder in the first degree and carrying a concealed handgun. A jury found him guilty of both counts, with a special verdict that he was armed with a firearm. A standard range sentence of 300 months was imposed. He appeals, arguing that Salazar’s simultaneous and prior representation of critical witnesses for both the defense and prosecution violated his Sixth Amendment right to an attorney free of conflicts of interest.
As a threshold issue, the State argues that Dhaliwal waived his Sixth Amendment right to a conflict-free attorney. We disagree, because the nature and full extent of the potential conflict was never explored thoroughly on the record and Dhaliwal had not been sufficiently informed on the record of the consequences of his choice.
We review a defendant’s claim of conflict of interest on the part of trial counsel de novo.
In Garcia v. Bunnell, the Ninth Circuit held that a criminal defendant waived his attorney’s conflict where the record showed that the defendant was well aware of his rights to an unbiased counsel, to seek outside legal advice, and to discuss with the court any dissatisfaction with his
In In re Personal Restraint of Pirtle,
The [trial] court asked Pirtle if, knowing the potential ramifications of having these witnesses testify, “do you wish to continue with the Public Defender’s Office and Mr. Westerman’s representation?”[11 ] In response, Pirtle said, “fy]es I do. I’m very pleased with my lawyer, and I — I mean, we [have] been waitin’ eight months now to get discovery and everything. I don’t want to spend another eight months with a new lawyer.”[12 ]
Pirtle’s waiver occurred after being expressly advised by the trial court of the potential ramifications arising from the previous representation of prosecution witnesses.
Here, the prosecutor brought the possible conflict to the court’s attention. In the colloquy that followed, Salazar stated he had represented three of the witnesses that would be called to testify on Dhaliwal’s behalf and that Dhaliwal was aware of the representation. They were Harbhajan Singh, Gurcharan Saidpur, and Resham Singh. Salazar stated that he had discussed his representation of these witnesses with Dhaliwal and he was agreeable. The court then asked Dhaliwal if he understood what they were
There can arise situations where an attorney representing two different clients can have a conflict of interest because those individuals’ interests diverge. It doesn’t sound like that is directly a problem in this case. You and Mr. Salazar and these other individuals all know much more than I about that. What’s important is that you all have your eyes open to the possibility that there could in some circumstances be a conflict and if there were a conflict, then that would need to be raised so we could take appropriate steps.
To which Dhaliwal responded, “I have no problem.”
But the trial court never informed Dhaliwal that he was entitled to a conflict-free attorney, that he could receive outside legal advice about waiving the conflict, and that he could ask questions.
Dhaliwal contends that the trial court’s failure to inquire regarding the nature and extent of the conflict automatically requires reversal. We disagree because he has not shown that the alleged conflict adversely affected his lawyer’s performance.
In determining whether an apparent conflict warrants reversal, we have traditionally employed a two-prong test: “First, a trial court commits reversible error if it knows or reasonably should know of a particular conflict into which it fails to inquire. Second, reversal is always necessary where
In formulating this rule, the Washington Supreme Court in In re Personal Restraint of Richardson
But in the Supreme Court’s most recent case on this subject, the majority opinion in Mickens v. Taylor held that
In reaching its decision in Mickens, the Court reviewed its prior cases, and limited the automatic reversal rule of Holloway to situations where defense counsel is forced to represent codefendants over a timely objection, unless the trial court has determined that there is no conflict.
Here, the trial court knew of a possible conflict and failed to adequately inquire. The court did not inquire regarding the current status of the shareholder suit, nor did it address the issue of Salazar’s past representation of the prosecution’s key witness, Grewal, when it was made aware of that potential conflict during the course of the trial. Its colloquy was not “searching”
To demonstrate that an actual conflict of interest adversely affected his lawyer’s performance, he must show that counsel “ ‘actively represented conflicting interests’ ” and that “ ‘an actual conflict of interest adversely affected his lawyer’s performance.’ ”
Under the second prong, the defendant must demonstrate that the lawyer’s performance was adversely affected by the actual conflict, and that the conflict “hampered his defense.”
Dhaliwal is unable to satisfy the first prong because he fails to show any instance in the record where his “ ‘interests diverge with respect to a material factual or legal issue or to a course of action.’ ”
Q: In fact, you were a defendant, were you not, with Mr. Dhaliwal and Harbhajan Singh in a case against you in which*239 they alleged you committed a felony assault on one of them; isn’t that correct?
A: No.
Q: In fact, that case was dismissed against you, was it not?
A: The case you are talking — the guy you are talking was not a part of Farwest, the case which came. Your office represented me, Harbhajan Singh and Paramjit Dhaliwal, you know better than I can describe.
Q: And they alleged that you, along with Mr. Dhaliwal and Mr. Harbhajan Singh, assaulted someone, did they not?
A: Yeah.
Q: Was that a false accusation?
A: Yes.
Q: So you never assaulted anybody?
A: No.
Q: And they falsely accused you?
A: I came from India in February 1999. When I was arrested at the airport, at that time I came to know there was a case against me and it was for an assault. I came — from there I came home and after that I talked to Paramjit [Dhaliwal] and he said nobody will take care of it or anything. At that time, he had already hired Mr. Salazar’s office to represent us.
Q: You didn’t threaten anybody in that case, did you?
A: No.
Q: You were completely innocent, were you not?
A: Yes.
Salazar’s cocounsel then dropped this line of questioning after the State’s objection.
Assuming Mickens applies not only to potential conflicts of interest arising from concurrent representation of multiple parties, but as here, to cases where counsel has previously represented an adverse party or witness, Dhaliwal is not entitled to an automatic reversal because he has failed to show that the potential conflict of interest
Nor are we persuaded by Dhaliwal’s alternative argument that we should remand for further inquiry. In Mickens, the Court commented that Wood does not stand for the proposition that “where the trial judge neglects a duty to inquire into a potential conflict, the defendant, to obtain reversal of the judgment, need only show that his lawyer was subject to a conflict of interest, and need not show that the conflict adversely affected counsel’s performance.”
Finally, Dhaliwal contends that the prosecutor made improper remarks during closing argument that prejudiced the jury, resulting in an unfair trial. We disagree because the comments fall within the latitude allowed in final argument.
Prosecutorial misconduct does not constitute prejudicial error unless the defendant demonstrates the impropriety of the prosecuting attorney’s comments and their prejudicial effect.
Dhaliwal did not object to any of the prosecutor’s remarks during trial. He relies on Bains v. Cambra
These statements made during closing cannot be said to have the same impact as those in Bains. Prosecutors are permitted latitude to argue facts in evidence and make reasonable inferences to the jury.
Affirmed.
Appelwick and Schindler, JJ., concur.
Reconsideration denied October 10, 2002.
Review granted at 148 Wn.2d 1009 (2003).
State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995); Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994).
United States v. Mett, 65 F.3d 1531, 1534 (9th Cir. 1995).
Garcia, 33 F.3d at 1195.
Edwards v. Arizona, 451 U.S. 477, 482, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)).
Evans v. Raines, 705 F.2d 1479, 1480 (9th Cir. 1983) (quoting Hodge v. United States, 414 F.2d 1040, 1042 (9th Cir. 1969)).
United States v. Allen, 831 F.2d 1487, 1498 (9th Cir. 1987) (quoting Glasser v. United States, 315 U.S. 60, 70, 62 S. Ct. 457, 86 L. Ed. 680 (1942)).
Garcia v. Bunnell, 33 F.3d 1193, 1195 (9th Cir. 1994).
Garcia, 33 F.3d at 1197.
136 Wn.2d 467, 965 P.2d 593 (1998).
Pirtle, 136 Wn.2d at 476.
Pirtle, 136 Wn.2d at 475.
Pirtle, 136 Wn.2d at 475-76.
Garcia, 33 F.3d at 1197.
Evans, 705 F.2d at 1480 (quoting Hodge, 414 F.2d at 1042).
Mickens v. Taylor, 535 U.S. 162, 173, 122 S. Ct. 1237, 1245, 152 L. Ed. 2d 291 (2002).
In re Pers. Restraint of Richardson, 100 Wn.2d 669, 677, 675 P.2d 209 (1983).
Richardson, 100 Wn.2d 669, 677, 675 P.2d 209 (1983) (“Taken together, Holloway, Sullivan and Wood” require reversal if a trial court knows or reasonably should know of a particular conflict into which it fails to inquire) (citing Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978); Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Wood v. Georgia, 450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981)). See also Recent Cases, Mountjoy v. Warden, New Hampshire State Prison, 245 F.3d 31 (1st Cir. 2001), 115 Harv. L. Rev. 938 (2002).
435 U.S. 475, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).
446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).
450 U.S. 261, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981).
Holloway, 435 U.S. at 488.
Cuyler, 446 U.S. at 350.
Wood. 450 U.S. at 272-74.
535 U.S. 162, 173-74, 122 S. Ct. 1237, 1245, 152 L. Ed. 2d 291 (2002).
Mickens, 535 U.S. at 164.
Mickens, 535 U.S. at 165.
Mickens, 535 U.S. at 165.
Mickens, 535 U.S. at 165.
Mickens v. Taylor, 240 F.3d 348, 357 (4th Cir. 2001).
Mickens, 535 U.S. at 168.
Mickens, 535 U.S. at 170 (quoting Wood, 450 U.S. at 273).
Garcia, 33 F.3d at 1197.
Selsor v. Kaiser, 81 F.3d 1492, 1501 (10th Cir. 1996).
State v. Robinson, 79 Wn. App. 386, 394, 902 P.2d 652 (1995) (quoting Cuyler, 446 U.S. at 348).
State v. Davis, 141 Wn.2d 798, 864, 10 P.3d 977 (2000) (quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (citing Cuyler, 446 U.S. at 348-50)).
Robinson, 79 Wn. App. at 394 (quoting Sullivan v. Cuyler, 723 F.2d 1077, 1086 (3d Cir. 1983)).
State v. James, 48 Wn. App. 353, 365, 739 P.2d 1161 (1987).
James, 48 Wn. App. at 366.
Glasser, 315 U.S. at 75.
James, 48 Wn. App. at 369.
State v. Lingo, 32 Wn. App. 638, 646, 649 P.2d 130 (1982).
Sullivan, 723 F.2d at 1086.
United States v. Miskinis, 966 F.2d 1263, 1268 (9th Cir. 1992).
Frazer v. United States, 18 F.3d 778, 787 (9th Cir. 1994) (Beezer, J., concurring).
Robinson, 79 Wn. App. at 395 (quoting State v. Hatfield, 51 Wn. App. 408, 414 n.3, 754 P.2d 136 (1988)).
Robinson, 79 Wn. App. at 394 (quoting Sullivan, 723 F.2d at 1086).
We do note, however, that the duty of the trial court judge to make an adequate inquiry is a continuing duty throughout trial. The possibility of a conflict of interest became obvious during the cross-examination of Grewal and the court should have inquired further.
Mickens, 535 U.S. at 170.
As the State noted during argument, this argument is better suited in the context of a personal restraint petition.
State v. Russell, 125 Wn.2d 24, 85, 882 P.2d 747 (1994).
State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991).
State v. Belgarde, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
Belgarde, 110 Wn.2d at 509-10.
204 F.3d 964 (9th Cir.), cert. denied, 531 U.S. 1037 (2000).
Bains, 204 F.3d at 974.
Bains, 204 F.3d at 975.
Bains, 204 F.3d at 975.
Bains, 204 F.3d at 974.
State v. Smith, 104 Wn.2d 497, 510, 707 P.2d 1306 (1985).
