State v. Smith

We there is sufficient evidence hold support finding plaintiff knew court that or should years two from the date

have known within injection injury that the she suffered by negligence have been caused on

part of defendant. to Respondents.

Affirmed. Costs J.,

CROCKETT, HALL, C. WILKINS and

JJ., HARDING, and Retired MAURICE Judge,

District concur.

MAUGHAN, J., not participate does

herein; Judge Retired District HARDING

sat.

STATE of Plaintiff and

Respondent,

Henry SMITH, Carl Defendant Appellant.

No. 16406.

Supreme Court of Utah.

Nov. Yengich

Ronald J. F. Bugden, Walter Jr., City, Lake ap- Salt for defendant and pellant. Hansen, Gen., Craig Atty.

Robert B. L. Barlow, Gen., Atty. City, Asst. Salt Lake for plaintiff respondent. WILKINS, Justice: Defendant was tried and convicted jury Court, in the District County, arson, degree felony,1 burgla- second ry, degree felony.2 appeals a third He as- serting that denied effective assist- ance counsel in violation Utah Consti- I, tution Article Section 12 and the Sixth 1. Section 76-6-103. 2. Section 76-6-202. defendant, any appointment nor of Carter to the United States Constitu-

Amendment Further, there represent to him. is no indi- tion. cation that defendant was advised of the to Code statutory references are Utah All appointed of interest which his conflict amended, Ann., 1953, unless otherwise had, any by nor is there waiver counsel indicated. of his constitutional to as- defendant charged with originally Defendant was counsel, sistance of noted ante. jointly with two other individ- these crimes clearly That a conflict of interest arose is defendant, Hebertson, re- joint uals. One shown this record. As the California charges private tained counsel. The People Superi Appellate Court stated ultimately dis- against Hebertson were Obispo, Cal.App.3d or Court of Luis San State, and he testi- missed on motion of (1979): Cal.Rptr. against defendant here. Defendant fied appears petitioner’s It statements defendant, Hall, joint other real parties to the court that one or both indigent, and Robert Schu- found to be oppor- have been offered an [defendants] macher, County attorney an in the Utah tunity plead guilty charge to to a lesser Office, appointed was to Public Defender’s testifying against return for the other represent both. party. real also an Sheldon We hold that a conflict of interest Office, County Public Defender’s sub- prevents the arose from this offer which arraignment stituted for at the Schumacher public effectively repre- defender from repre- of defendant and Hall. Schumacher senting the client to whom the offer was pre- and Hall at the sented both defendant (hereafter “offeree”) regarding made January liminary hearing, and on offer, [citing public defender cases] both. filed a notice of alibi on behalf of On ethically to ac- cannot advise the offeree January filed an Schumacher cept the offer advise him in or otherwise alibi, again behalf of amended notice of on might encourage manner which January defendant and Hall. On both so accept decision to the offer—to do represented Hall at a Schumacher directly would be adverse to the interests hearing before the District Court which Conversely, of his other client. present. defendant was not At this hear- necessarily against acts the interests of ing, plead guilty attempted burgla- Hall rejection the offeree if he advises misdemeanor, charge ry, a class A accepted, offer should be [at against of arson him was dismissed. Cal.Rptr. 488-489]3 exchange charge, Hall for the reduced Hall, chose to advise the of- Schumacher agreed testify against defendant. Two feree, adversely affecting the thereby inter- later, 1, 1979, days February on defendant defendant, ests of his other client. He was felony charges, was tried on the two with defendant; effectively assisting not representing him. Carter identifying with his interests.4 The record does not disclose by having This conflict was not remedied withdrawal as counsel for try Schumacher the Public Defendant’s associate Obispo peti- intelligent In the San Luis the State and rights waiver of their constitutional appointment sepa- tioned the for the Court to counsel. rate counsel each defendant in- because of plea bargaining placed consistent offers which 4. “A defendant is entitled to the assistance of a public Bar, defender in a conflict of interest with competent member of the who shows a clients, respect to its and before either defend- willingness identify himself with the inter peti- ant was advised of the offer. When that present ests of the accused and such defenses denied, appealed, tion was the State and the available are under the law consistent appellate court reversed. The Court found that profession.” with the ethics of the Alires v. Turner, as the defendants had not been with counseled 22 Utah 2d 449 P.2d 241 offer, they respect also, McNicol, Utah, to the details of the had See knowing no information on which to make a same here, case. Members of the association We believe there error conflicting inquire need not into whether the error was harmless, interests, a strong as there is likelihood that because of the fundamental na- ture rights to the privy both have been confidences of constitutional involved. Holloway, supra. both defendants.5 urges Defendant this Court to adopt a The that State contends defendant rule requiring separate and independent cannot raise the of of issue ineffectiveness counsel in cases in two or more de- counsel due to conflict of interest for the fendants are charged crimes arising citing first appeal, Tip time on out of the same incident. We need not petts, (1978) 892 as requiring 584 P.2d matter, scope reach the full this of as it is objection part an on the of defendant at the unnecessary disposition to our of this case.7 preserve point. in order to this But Defendant seeks a reversal of his holding the convic- Tippetts in was based on the tion agree and a new We trial. that a new ground that no there was conflict of inter trial is est, necessary, and case is remanded only attorney because stated to for that purpose. the District Court that he knew of no con flict, also, but the examination of the record STEWART, JJ., MAUGHAN and concur. by this Court revealed no conflict of inter est between the two there.6 CROCKETT, Justice (dissenting): Chief

We argument do not find State’s Originally there were three defendants in persuasive when conflict of interest is this case charged jointly with arson and attorneys clear as it is in this case. The theft of money from a contractor’s mobile- responsible raising objection an for did not Hebertson, home represented office. Don do so. And we cannot assume that under by employed counsel, was dismissed out of these the attorneys circumstances advised confessing the case implicating after conflict, defendant of this nor that they two, the other Shane Hall this defend- object advised him must ant, that he on his own Henry The court appoint- Carl Smith. waiving behalf to avoid his constitutional office, ed the County Defender’s rights. “The law will not assume that which attorneys has a number of on its staff, counsel has his client of advised his inade- to defend Hall and Smith. quacies or his those of associates.” Com- At the preliminary hearing, Mr. Robert Via, supra, monwealth v. note 5. ap- Schumacher of the Defender’s staff argues peared

The State further that defendant representing of prejudiced by the conflict they of inter- both of those After defendants. court, est of his But attorneys. the assistance of bound over to the district another of those among attorneys, “constitutional the Defender’s Mr. Sheldon Car- rights ter, appeared so basic to a fair trial that arraignment their at the when the infraction be plea can never treated as harmless defendants entered their of not guilty. California, Chapman 18, error.” v. 386 U.S. Mr. filed an Schumacher then identical de- 827, 87 S.Ct. 31 L.Ed.2d fense of 483 “notice of alibi” for both and filed Arkansas, Holloway See also v. an identical of notice of “amendment alibi” U.S. 98 S.Ct. 55 L.Ed.2d 426 for both. Via, States,

5. Commonwealth v. 455 Pa. 7.But see A.2d Glasser v. United 315 U.S. (1974); Westbrook, Pa., (1942); Commonwealth v. 62 86 L.Ed. 680 Arkansas, Lawriw, 400 A.2d supra; States v. United (8th 1977); F.2d 98 Cir. and the A.B.A. Stan Justice, 6. The author this case dissent- dards for Criminal Defense Func Tippetts ground tion, ed in 3.5(b) (1971) analyses on the that the defendant § comments evidentiary there was “. . to an . entitled hear- concerning representation. dual question possible prejudice on the of resulting representation.” dual ... P.2d at 893. thereafter, apparent It is that after defendant Mr. days five Schu- Within agreement into the Hall had entered hearing at a represented Hall macher rec- Mr. plea guilty, enter a of Schumacher to dismiss moved prosecutor wherein might problem be a if ognized that there Hall, defendant against charge of arson the defendant continued guilty to a then entered who what I in accordance with He acted Smith. involved an burglary, which charge of high professional regard as a standard testify against that Hall would agreement representation of by discontinuing his ethics occurred, Mr. Schumach- After Smith. nothing fur- He did the defendant Smith. representing nothing further er did therein, turn the latter’s case except to ther Smith, latter’s case over but turned the shows, Carter, who, the record Mr. over to in all represented who Smith Mr. job represent- entirely competent did thereafter, including conduct- proceedings The matter ing the defendant’s interests. ing his trial. in this case is over-riding importance justice in this interests of Insofar as the conjecture there is not even the merest that concerned, that the significant it is case are deficiency in the rela- any there was that rendered indicates that Mr. Carter client, any nor fault tionship of counsel and competent therein, had, credible service entirely and have or could or failure Smith; had, and any upon of defendant effect the defendant in his defense adverse beyond further, shows his conviction.3 that the evidence or that the defendant any reasonable doubt jus- square my with sense of does not It the crime instigated planning the of Smith accept very for a defendant to tice burning actively participated a conscientious and efforts of considerable that stealing the cash box. In trailer lawyer, represents who him capable that, important to note regard, it is further giving case without the defendant tries his the defendant raises appeal, in his brief on disagreement or any word or indication of just-stated either of the question outcome, no as to objection, by to abide the stands facts, relating to argues only loses, matters but attacks when he then turns and counsel, subject a proper uninhibited him right having given his to counsel as not that the trial representation. never mentioned to which was his conviction. court until after I would affirm the conviction. dissent, cogni- I take full writing In this HALL, (dissenting): Justice with cer- my agreement note zance of and of Mr. Chief Jus- I concur the dissent propositions respecting tain thereof, com- support tice Crockett and in crime is entitled to One accused of counsel. further as follows. ment undi- give will unreserved and counsel who interests and his vided commitment to his court, the main reversing the trial appears If it that one defense.1 Superior quotes People v. opinion jointly two or more defendants represents appel- That case is an intermediate Court.1 are such charged, and the circumstances decision, which, course, we of late court there any is likelihood that that there since it is espouse, particularly need not conflict, one so that the interest of be a held factually inapposite. The court there other, each may give way to that of 'the had a conflict of interest when that counsel separate coun- representing be entitled to he was accused should the two defendants plea bargains, al- But the facts of this case do not were offered inconsistent sel.2 declined the offers. though both defendants propositions. with those conflict Andrews, S., v. 106 Ariz. 62 86 3. State 1. v. U. 315 U.S. S.Ct. Glasser Arkansas, (1970). (1942); 435 680 v. L.Ed. 55 L.Ed.2d 426 U.S. Cal.Rptr. Cal.App.3d 1. 94 Gallardo, Cal.App.2d People Cal.Rptr. 572 comparable all to the facts of not Such is at conflicting with nothing had do interests,” case. Schumacher instances, while true in most is plea guilty defense after the Smith’s prohibition. to be taken as an absolute Carter, by try was entered Hall. who did Thompson4 points out a that con- case, party was not a to the bar- flict of only interest arises when such con- session, gaining only and the reasonable flict by timely becomes manifest as made inference to be drawn from Schumacher’s “strong objection,” as was the case in Glas- ques- nonparticipation at trial ser and Holloway. thereby tion of conflict of interest was Our own recent case v. Tippetts of State eliminated. Such an inference is adequate- upon also bears this matter. In that ly supported by the defendant himself since represented co-defendants were by separate he did complain not once day trial, counsel. theOn of the attorney assistance rendered either Schumacher co-defendant, Tippetts’ Lopez, or for competency, good nor their ill faith, presence or conflict ethics and the accepted representation latter challenges legal He now so interest. his attorney, objection. former’s without representatives appeal, first time on that, We held absent an affirmative show- practice traditionally which we have re- interest,” of a “conflict no constitu- fused condone. tional issue was raised and that Glasser was point. not in passing The main makes The same refer- rationale was em- ence to Glasser v. U. ployed S.2 v. Andrews:6 State Arkansas3 apparently accepts the facts In order for assistance counsel for and decisions therein as decisive of the issue impaired an accused to be by representa- However, presented here. is com- Glasser a tion of the attorney, same actual conflict plete stranger factual to the case at hand. must in fact have be existed or inherent case, actually co-defendants in the facts of the case from which a objection tried over the one co-defendant possibility prejudice flows. [Citations joint representation by as to the same coun- omitted.] sel. In the instant defendant Smith at In the absence of evidence whatsoev- objected representation no time to his interest, er conflict of I decline to and, significantly, only Smith stood speculation trial, engage in unwarranted represented solely its by Carter. I existence. would therefore affirm Holloway: As was stated in judgment of the trial court. here, principle applicable emerges One ambiguity. Requir- from Glasser without or permitting single attorney

represent co-defendants, often referred to joint representation, per is not se viola-

tive of guarantees constitutional of effec-

tive assistance of counsel. clear,

It thus seems in the absence of a otherwise,

showing one that where co-defendant,

represents only one no viola-

tion of constitutional occurs. generalization main

that “members of the same association (1942). (1978). 2. 315 U.S. L.Ed. 680 584 P.2d 892 3. 435 U.S. 98 S.Ct. 55 L.Ed.2d 426 6. 106 Ariz.

4.108 Ariz. P.2d

Case Details

Case Name: State v. Smith

Court Name: Utah Supreme Court

Date Published: Nov 25, 1980

Citation: 621 P.2d 697

Docket Number: 16406

Court Abbreviation: Utah