State v. EdwardsState v. Edwards
The ruling of the trial court is reversed; the case is remanded for an evidentiary hearing on the habeas application and for a ruling thereon; the right to apply for review is reserved to both sides.
At the evidentiary hearing, Milton P. Masinter affirmed that he had represented both McNabb and Edwards at the prior trial. He stated that he had advised Edwards about the disparity in the evidence more than once prior to trial; however, Edwards wanted to go forward with him as his attorney “for other reasons which I don‘t feel necessary to divulge at this time.” Mr. Masinter also recalled a meeting in the judge‘s chambers at which the “Court did make them [defendants] aware of what was going on and what the consequences would be” and Edwards “acknowledged what was said and he [Edwards] said it was okay and that is what he wanted to do was to go forward.” Edwards, while denying that Mr. Masinter ever told him that there would be problems representing both McNabb and himself, admitted that Mr. Masinter advised him of the disparity in the evidence but told him that “it would be advantageous for him to represent both myself and Mr. McNabb.” When questioned as to the advantage of going to trial with McNabb, Edwards stated:
Milton [Masinter] could control him [McNabb]. He could control whether to put him on the stand or not. He could control the questions asked of him. He could control everything.
However, Edwards denied that he was afraid McNabb was going to testify against
Edwards’ wife also testified at the hearing. She stated that McNabb “was feeling very bitter towards my husband and that he [McNabb] wanted revenge and that he [Masinter] felt that if he tried the two men separately that McNabb would testify against my husband for revenge.” She also stated that Mr. Masinter told her that McNabb was “psychotic and unpredictable” and that the only way he could maintain control over her husband‘s defense was to try McNabb with him.
At the conclusion of the hearing, the trial judge, finding a conflict of interest based on the disparity of the evidence between the defendants and the lack of any evidence in the record that Edwards was advised “of the possible problems in being represented by one attorney,” granted Edwards a new trial. On the state‘s application, we granted a writ under our supervisory jurisdiction to review the correctness of that ruling.4
The relationship between joint representation and ineffective assistance of counsel has been thoroughly examined by the United States Supreme Court in its opinions rendered in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), and Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); State v. Marshall, 414 So.2d 684 (La.1982). In Holloway, defendant raised the issue of a conflict of interest prior to a joint trial. In this situation, the Court held that the trial judge is required “either to appoint separate counsel or to take adequate steps to ascertain whether the risk [of a conflict of interest] was too remote to warrant separate counsel.” In Sullivan, the defendant did not raise the issue of conflict of interest either before and during his separate trial. Rather, the defendant, as in the instant case, raised the issue for the first time after his trial. In this situation, the Court held that a defendant “in order to establish a violation of the Sixth Amendment ... must demonstrate that an actual conflict of interest adversely affected his lawyer‘s performance.” In addition, the Court held that “[u]nless the trial court knows or reasonably should know a particular conflict exists, the court need not initiate an inquiry.” See also Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). Recently, in State v. Marshall, supra, we held that the time at which a concern over the effects of multiple representation is raised is the determinative factor in deciding whether the rules of Holloway or Sullivan are controlling.5 Therefore, because in the instant case Edwards raised the issue after the trial, Sullivan controls.
The trial judge‘s basis for finding a conflict of interest was the disparity of the evidence between the defendants. However, the mere fact that the evidence against one codefendant is stronger than that against the other does not indicate, much less demonstrate, the existence of a conflict of interest between the defendants. United States v. Gallagher, 437 F.2d 1191 (7th Cir.1971), cert. denied. Thus, the trial judge‘s reliance on the disparity of the evidence for finding a conflict of interest between the defendants was misplaced.
Rather, the proper test as set forth in Sullivan is whether Edwards can show that an actual conflict adversely affected his lawyer‘s performance. Our review of the record reveals that Mr. Masinter conducted a vigorous defense for each of the defendants. Moreover, it should be noted that the only witnesses, four in number, called by the defense testified on behalf of Edwards. In addition, the trial transcript does not indicate, nor is it alleged, that there existed any antagonistic defenses. Edwards’ only complaint, other than the disparity in the evidence, is that he was denied the right to testify on his own behalf because of the prejudicial effect it would have had on McNabb. However, this is a
Finally, the state argues that even if there was an actual conflict, Edwards waived his right to conflict-free counsel. In considering whether Edwards waived his right to the assistance of counsel free from any conflict of interest, it is necessary to consider the “facts and circumstances surrounding... [this] case, including the background, experience and conduct of” Edwards. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Edwards was the owner and operator of a used car business and as Mr. Masinter stated: “He [Edwards] is not an ignorant man.... He knew what we were up against, where we were going, and what was happening.” Our review of the evidence adduced at the post conviction hearing convinces us, even assuming a conflict of interest did exist, that Edwards made a knowing and intelligent waiver of his right to representation free from conflict of interest. Moreover, contrary to the trial judge‘s impression, there is no requirement either under state law or decisions of the United States Supreme Court that the waiver be made part of the record.
In sum, we conclude that Edwards failed to show an actual conflict of interest that adversely affected his lawyer‘s performance. Moreover, even assuming such a conflict did exist, we find that Edwards made a knowing and intelligent waiver of his right to conflict-free counsel under the circumstances of this case. Hence, the trial judge erred in granting a new trial in this post conviction proceeding. We must reverse.
DECREE
For the reasons assigned, the ruling of the trial court is reversed and set aside.
LEMMON, Justice, concurring.
I fully agree with the majority opinion, because we are reviewing the trial court‘s decision on a postconviction application. However, if the matter had come before the trial court on a timely filed motion for a new trial based on the “interest of justice” under
Here, however, the issue was not raised until the conviction had been affirmed on appeal, and the trial court did not have the latitude available when deciding a motion for a new trial. The trial court was bound to adhere to and respect the limits imposed by the legislative provisions regulating postconviction proceedings.
The grounds for postconviction relief are set forth in
LEMMON, J., concurs and will assign reasons.