State v. MorrowState v. Morrow
We granted certiorari to review the trial court‘s denial of relator‘s application for postconviction relief. 421 So.2d 239. The application challenged relator‘s aggravated kidnapping and forcible rape convictions on two principal bases, one of which was that his retained lawyer‘s joint representation of both him and his codefendant, Michael Burge, created a conflict of interest which denied him effective assistance of counsel. After reviewing the records of the original trial and of the postconviction hearing, we conclude that relator did not receive effective assistance of counsel on the aggravated kidnapping charge, because the trial attorney‘s joint representation of the codefendant, undertaken for an additional fee without full disclosure to relator of the potential disadvantages, prevented that attorney from presenting evidence, cross-examining witnesses and making arguments to the jury on the state‘s failure to prove relator‘s participation in the initial abduction of the victim and on his undisputed lesser culpability in the entire sequence of events.
Facts
On July 28, 1976, the victim, a 48-year old practical nurse, stopped to purchase groceries after an evening class. As she entered her car in the parking lot after shopping, a young man (later identified as Michael Burge) rapidly approached her and held a sharp object to her neck, telling her “[d]on‘t say a word and you won‘t get hurt“. He forced her to move over, got into the driver‘s seat, drove a short distance, and stopped very briefly. Relator quickly entered the car, as Burge warned the victim that the other passenger would “blow her head off” if she did not cooperate, implying that relator was armed with a pistol which was trained on her. Burge then sped onto the highway.
As Burge drove recklessly around the streets of Slidell, he demanded that the victim give him her money. When she could produce only five or six dollars, Burge became furious and told her to “think real good, old bitch” about where she could find more money. Although the victim could not see relator in the rear seat, she heard what she referred to as an “echo” by a young voice as relator repeated Burge‘s threats and abusive language. At one point Burge told relator “don‘t fool with that gun... [because] we don‘t want to kill anyone if we don‘t have to“.
When Burge resumed driving, relator said he wanted to have intercourse again. The victim objected, and Burge slapped her again and continued driving to the river, where he threw away the victim‘s purse. He drove back to the highway and ordered her to get out, warning her not to look back or tell anyone about the incident. She began running and came to a lighted house, where she reported the incident.
The police were already searching for the victim‘s car, having been alerted by a person who had seen the incident in the parking lot. The victim was interviewed by the police and then examined by a gynecologist, who discovered immotile sperm in her vaginal tract and found signs of trauma, indicative of forcible intercourse.
Utilizing an excellent description of Burge provided by the victim, police apprehended both Burge and relator the next day. The victim identified Burge as the driver. Burge and relator, who were 17 and 16 years old respectively, separately admitted to the arresting officers that they had abducted and raped the victim.
After being indicted for aggravated rape and aggravated kidnapping, relator retained an attorney and entered a combined plea of not guilty and not guilty by reason of insanity. Later, the same attorney additionally undertook to represent Burge, who also entered the same combined plea. Although relator did not object to the joint representation, the attorney did not explain to relator or his family the potential advantages and disadvantages. However, the attorney agreed that he would withdraw from Burge‘s representation if relator felt it was appropriate.
At trial, defense counsel did not endeavor to contest the victim‘s version of the incident or the role played by each defendant in the sequence of events.1 Instead, counsel focused on developing evidence that Burge and relator were so highly intoxicated from consuming beer and Seconal that they were incapable of forming the specific intent required for aggravated kidnapping or of distinguishing right from wrong.2 The prosecutor challenged the defense theory in closing argument, pointing out that the defense did not establish the amount of drugs and alcohol taken by the two young men and that the victim‘s description of the men‘s behavior indicated that they were simply not in the “drugged” state that the defense attempted to portray.
The jury found both defendants guilty of aggravated kidnapping. The jury also found Burge guilty of aggravated rape as charged, but only convicted relator of forcible rape.
At the penalty trial conducted on the aggravated kidnapping conviction, the prosecutor presented no additional evidence or
The jury recommended life imprisonment without parole for both. The trial court sentenced Burge to consecutive life sentences and sentenced relator to 20 years imprisonment for forcible rape, to run concurrently with the life sentence without parole for aggravated kidnapping. On appeal, relator‘s conviction and sentence were affirmed.4 State v. Burge and Morrow, 362 So.2d 1371 (La.1978).
Effective Assistance of Counsel
At the hearing on the postconviction application, relator testified that he and Burge had gone to the store to buy beer, but were unable to cash a check; that Burge left him outside the store and went to seek a ride home with his mother‘s friend that he had seen in the parking lot; that he thought the car Burge was driving belonged to his mother‘s friend; and that he did not realize the lady had been kidnapped until he heard the demand for money. He further testified that he told this story to his lawyer in the first interview. The trial attorney was called as a witness for the state, but was not asked to confirm or deny that relator had described this version to him.5
Relator‘s present counsel argues that his initial lack of guilty knowledge was a complete defense to an indictment charging “a forcible seizing and carrying” of the victim from one place to another, since relator did not knowingly participate in the “seizing“, but only in “the carrying“.
Effective representation includes the requirement of undivided loyalty. When codefendants retain the same attorney in order to present a common defense, the risk exists that a conflict of interest may develop.7
Since the conflict of interest issue is raised in the present case in a postconviction context, the decision in Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), governs the analysis. The Sullivan decision reaffirmed that multiple representation does not in itself deprive an accused of effective assistance of counsel and held that an accused who did not object to multiple representation before conviction must show, in order to establish a Sixth Amendment violation, that “an actual conflict of interest adversely affected his lawyer‘s performance“. See State v. Edwards, 430 So.2d 60 (La.1983); State v. Kahey, 436 So.2d 475 (La.1983). Such a showing requires more than the existence of a theory of defense which, in the clear light of hindsight, appears to have been better than the defense theory used unsuccessfully at trial.8
When an ineffective assistance complaint is based on the trial attorney‘s failure to develop a completely different strategy, a reviewing court is understandably hesitant to speculate on the merits of the defense which was not presented because of a conflict of interest. However, the critical inquiry is not whether the unraised defense would have been successful, but whether the defense was plausible. When multiple representation forecloses the use of a plausible defense that might have benefitted one defendant, but would have prejudiced the jointly represented codefendant, the conviction must be overturned, unless there has been an express and knowledgable waiver of the right to conflict-free counsel. Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir.1975). The conflict of interest occurs not in the attorney‘s choice of defenses, but in the attorney‘s inability to make a free choice.9 Moreover, the fact that the attorney chose a defense which was as equally plausible as the unraised defense (or perhaps even stronger) is of no moment, as long as counsel‘s failure to raise the plausible defense because of the conflict prejudiced his client.
In the present case, relator‘s defense of noninvolvement in the initial abduction of the victim was at least a plausible defense to the aggravated kidnapping charge. Admittedly, the jury‘s verdict was not susceptible of a claim of insufficient evidence.10 However, the state‘s own evidence
We accordingly proceed to examine the evidence and arguments which relator‘s attorney could not present on relator‘s behalf without casting the mantle of guilt on Burge.
At the postconviction hearing, relator testified without contradiction that he told his trial counsel he was waiting for a ride home and did not initially know of the kidnapping. Yet the trial attorney did not present evidence or argument on this point even in the penalty phase, presumably because he could not do so without emphasizing Burge‘s guilt.
The victim and the witness to the incident in the parking lot clearly testified that Burge alone performed the initial abduction. Nevertheless, relator‘s trial counsel failed to emphasize to the jury, through cross-examination and argument, that relator did not participate in the initial abduction. More importantly, counsel never emphasized relator‘s lesser overall culpability, not even during the penalty phase when the jury was considering the death penalty for both defendants. The state argues that the facts establishing relator‘s lesser culpability were before the jury, but that argument underplays the role of advocacy. The importance of emphasizing relator‘s lesser role is best illustrated by the fact that this court on original appeal mistakenly stated, in reciting the undisputed facts, that “defendants placed a sharp object at the throat of a female shopper as she returned to her car” and “[t]he two then forced the woman into the passenger side of the vehicle and drove her to a deserted area, where she was beaten and raped“. (Emphasis supplied)
Trial counsel also did not follow up on Cantrell‘s statement at the original trial that relator told him he was waiting “around the side of the building wanting to go home” after they couldn‘t cash the check. See note 5, above. Neither did the attorney argue that point to the jury. Moreover, Cantrell later testified at the postconviction hearing that Burge told him “not to get mad at [relator] for anything that had happened, because [Burge] had forced [relator] to go with him“. Cantrell further testified that he had told relator‘s attorney that Burge had pulled a knife on relator and forced him to go to the store, but the attorney instructed Cantrell not to mention this. The trial attorney was not asked to confirm or deny the testimony, which therefore stands uncontradicted.
Relator‘s sister testified at the postconviction hearing that Burge, who had just gotten out of jail, had pulled a knife on relator shortly before they left for the store, but that relator‘s attorney instructed her not to say this in court. The district attorney also did not question the trial attorney on this point.
Additionally, since relator had no prior record and was clearly the less culpable of the two defendants, there was no compelling reason for him not to testify, except that his testimony would have drawn the jury‘s attention, directly or indirectly, to Burge‘s greater culpability.11 Yet relator‘s trial counsel never advised him nor discussed with him the potential advantages of taking the stand, presumably because of the difficulty in “serving two masters“.
Finally, relator‘s attorney presented no argument to the jury, even in the penalty phase, which pointed out that relator may
The representation as to the intoxication defense was vigorous and well presented. Nevertheless, there was another plausible defense that could not be presented because of an actual conflict of interest. Significantly, the two defenses were not inconsistent, but were supplemental, since a conflict-free attorney could have argued that relator was so intoxicated that he could not form the specific intent required for aggravated kidnapping (or could not discern right from wrong as to either offense), or alternatively that relator did not plan the kidnapping and did not realize in his dazed condition that a kidnapping had occurred until Burge had already seized the victim and carried her away.
We conclude that the evidence and argument, which relator‘s attorney was precluded from presenting because of a conflict of interest, might have influenced twelve reasonable jurors, under the overall circumstances of this case, to return a different verdict (such as simple kidnapping, with a five-year maximum sentence).12 At the very least, relator was entitled to have a jury (rather than an appellate court) make this determination on the basis of evidence and argument forcefully presented by an advocate solely interested in his welfare.
A Louisiana lawyer should not accept separate fees for joint representation of two codefendants in a criminal case and then fail to present on behalf of one codefendant a plausible defense consistent with the common defense simply because of the potential devastating effect on the second codefendant (at least without the knowledgable consent of the affected codefendant after full disclosure). A Louisiana trial court should not allow multiple representation without inquiry into such potential conflicts of interest. But when this has happened, as proved by relator in this case, a Louisiana appellate court cannot allow a conviction obtained under such circumstances to stand, when the actual conflict of interest adversely affected the trial attorney‘s performance.
We therefore hold that relator has proved an actual conflict of interest which adversely affected his attorney‘s performance and accordingly is entitled to a new trial on the charge of aggravated kidnapping.13
For these reasons, relator‘s conviction of aggravated kidnapping is set aside, and the matter is remanded to the district court for a new trial on that charge.
DIXON, C.J., and WATSON and MARCUS, JJ., dissent.