Carson TATE and Lester Mitchell, Appellants (Defendants Below), v. STATE of Indiana, Appellee (Plaintiff Below).
No. 2-385A85
Court of Appeals of Indiana, Second District
Dec. 3, 1987
Rehearing Denied Jan. 13, 1988.
515 N.E.2d 1145
SHIELDS, P.J., and BUCHANAN, J., concur.
As discussed, however, the presentation of the State‘s case in support of the petition‘s allegations was deficient. We may not affirm the revocation in speculation as to what the State might have proved.
Carson Tate and Lester Mitchell were convicted of theft.1 They appeal, claiming the trial court committed fundamental error in allowing the same public defender to represent them both during their joint trial.2 We agree and reverse.
FACTS
The evidence supporting the convictions reveals Tate exited a Kroger grocery with a cart of unbagged groceries for which he had not paid. Once outside the store, Mitchell assisted Tate in pushing the cart through the parking lot. When a Kroger employee pursued the two inquiring whether they had a receipt, Tate and Mitchell abandoned the cart and separated. At some point, Mitchell walked toward Tate. However, when Tate approached the Kroger employee and asked, “What groceries?” (Record at 85) Mitchell again went his own way and was corralled by another Kroger employee. Tate and Mitchell were ushered into the store to await the police. Witnesses observed Tate drinking from a Kroger-labeled bottle of Mogen David wine while waiting for the police; other witnesses identified Mitchell as the imbiber.
At their initial hearing Tate and Mitchell received one court-appointed counsel who represented them throughout their joint trial. Neither Tate nor Mitchell lodged an objection to the representation.
DISCUSSION
The right to the assistance of counsel with undivided loyalty is guaranteed by the Sixth Amendment to the United States Constitution.
Andrew P. Sheff, Bennett & Sheff, Indianapolis, for appellants.
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Indianapolis, for appellee.
In the wake of Cuyler, some courts have explicitly rejected the apparent two element test advanced by the Cuyler majority in favor of requiring only proof of an actual conflict of interest.3 Other courts, including Indiana, appear to follow the Cuyler two element formulation.4 However, those cases applying the two element test fail to specify the evidence that is relevant in establishing each element of the Cuyler test. Consequently, the cases fail to clearly differentiate between the elements of adversely affected performance and actual conflict of interest.
The lack of unanimity in caselaw addressing this question was forecast by Justice Marshall. In his concurring and dissenting opinion in Cuyler, Justice Marshall discussed the failure of the majority to expound upon the distinction it appeared to make between the element of actual conflict and the element of adversely affected performance. He also expressed concern about the difficulty of proving adversely affected performance when the attorney‘s act is one of omission rather than commission. His position was that an adverse affect on the attorney‘s performance is inherent in a finding of actual conflict and, therefore, proof of the latter is proof of the former.
In our opinion, the “actual conflict of interest” component refers to the competing interests of co-defendants arising from multiple representation.5 In a trial scenario, competing interests exist if the advocacy of one defendant‘s interest impinges on the advocacy of a co-defendant‘s interest.6 The focus is on the client‘s relationship to one another. Accordingly, in addressing this element it is inappropriate to state “the attorney has a conflict of interest,” or to define actual conflict of interest by reference to what counsel does or does not do.7
In contrast, the “adversely affected performance” component of the two element Cuyler test is properly defined by reference to the attorney‘s conduct. In other words, if the two elements of the Cuyler test are to serve distinct and separate functions, in a multiple representation situation8 the actual conflict element must refer to the state of affairs between the
Where an actual conflict of litigation interest exists between the defendants, the attorney‘s active representation necessarily will result in impairing his performance as to at least one defendant. Given his clients’ conflicting interests, counsel is necessarily and inevitably placed in the position where he cannot represent the interest of one defendant without impairing the representation of his other client‘s interest. Thus, as to the adversely affected performance component of the Cuyler test, the record must be searched or evidence must be submitted at a hearing, not to assess the quality of the attorney‘s tactics, but to determine (1) whether the joint attorney, at various times, represented the different interests of his clients who are challenging that representation, in which case, a reversal would be warranted for all, or (2) whether the attorney consistently represented the interests of one client over the interests of his other client, in which case the attorney‘s performance is not impaired as to the favored client, and a reversal would not be warranted for that client.
This principle is well illustrated in Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, extensively discussed in Cuyler. Glasser and Kretske were assistant United States attorneys accused of soliciting and accepting bribes in connection with their duties regarding impending and pending criminal indictments. Shortly before trial, Glasser‘s attorney was appointed to represent Kretske, and the two were tried jointly. At their trial, Brantman, a prosecution witness, testified he gave Kretske $3,000 on behalf of Abosketes whose indictment was impending. Brantman also testified he did not know Glasser. He was not cross-examined. Then Abosketes, testifying for the prosecution, stated Brantman told him, he (Brantman) knew Glasser and “that was all there was to it.” 315 U.S. at 72, 62 S.Ct. at 466. Abosketes further testified he would not have given Brantman money had he not believed Brantman was able to bribe Glasser.
Brantman‘s testimony did not exculpate Glasser; it implicated only Kretske. At the same time Abosketes’ testimony, while inculpating Glasser, did not exculpate Kretske. Thus, although neither witness‘s testimony implicating one defendant necessarily exculpated the other defendant, their testimony, taken together, evidenced an incompatibility of interests between Glasser and Kretske, i.e., the actual conflict element. At that point, Glasser‘s attorney was duty-bound to contend Abosketes was incorrect and Brantman correct. Conversely, as Kretske‘s attorney, he was duty-bound to contend Abosketes was correct and Brantman incorrect. However, because he represented both at a joint trial, he was unable to effectively represent either Kretske or Glasser. Therefore, by continuing his representation after the actual conflict developed, the attorney‘s performance was necessarily adversely affected. Further, the fact the attorney did not cross-examine Abosketes was evidence he did not consistently favor Glasser‘s interests. In sum, the testimony of the prosecution witnesses revealed the actual conflict while the adversely affected performance component was shown by the attorney‘s continued representation of both Kretske and Glasser in a manner not consistently favorable to Glasser‘s interest.9
So, too, in Camera v. Fogg (2nd Cir.1981), 658 F.2d 80, one attorney jointly represented, at a single trial, co-defendants charged with kidnapping. Although there was evidence the principal defendant had a violent, unpredictable character that kept all of his acquaintances in fear, the attorney‘s strategy was to prove a crime did not occur because the “victim” consented to the “kidnapping.” The court observed the co-defendants would have been able to pursue a defense of duress had they been
“It is sufficient to point out that the defense could have been raised and that there was a basis for it, and that it would have served to disassociate [the co-defendants] from [the more culpable defendant] whose interests clearly diverged from [the co-defendants‘].”
Id. at 82. Therefore, in Camera, the fact the attorney was precluded from considering a viable defense option because of his duty to the principal defendant showed that he acted on behalf of the interests of the principal defendant at the expense of his other clients. Thus, as to the other clients, his performance was impaired.
In the present case, despite the dissent‘s protestation, application of the Cuyler standard compels us to conclude the record irrebuttably demonstrates an actual conflict of co-defendants’ interests which adversely affected the performance of their attorney.
The actual conflict in Tate and Mitchell‘s interests is evidenced by Tate‘s testimony at trial. Tate testified he had been in the store, alone, but left empty-handed; that he ran into Mitchell as Mitchell was pushing the full cart through the parking lot; and that he accompanied Mitchell because Mitchell claimed to have something to drink though Mitchell protested they could not drink it in the parking lot. Tate was therefore professing his own innocence by suggesting that Mitchell stole the groceries and the wine. Certainly this testimony reveals a conflict in the respective interests of Tate and Mitchell. See Parker v. Parratt (8th Cir.1981), 662 F.2d 479, 484 (“Clearly a conflict would arise where one defendant attempts to exonerate himself by pointing the finger at co-defendants.“)
Equally glaring is the fact that once this conflict in the co-defendants’ interests arose the performance of their joint counsel was necessarily impaired by his continued active representation. Tate‘s exculpatory testimony was received free of cross-examination on Mitchell‘s behalf, despite the fact Tate attempted to exonerate himself by pointing the finger at Mitchell. Obviously, Mitchell‘s acquiescence in Tate‘s scenario was “coerced” because his counsel was precluded from testing Tate‘s testimony by cross-examination. If counsel had attacked the credibility of Tate‘s testimony inculpating Mitchell, as he should have as counsel for Mitchell, he would have, at the same time, inculpated Tate. Thus, counsel‘s active representation of Tate precluded him from cross-examining Tate. Consequently, as in Camera v. Fogg, the attorney‘s failure to cross-examine Tate established his performance on Mitchell‘s behalf was adversely affected.10
Yet another example of the actual conflict of interest between the defendants occurred when prosecution witnesses testified one of the defendants drank the Kroger-labeled Mogen David wine while waiting for the police to arrive. This evidence is extremely inculpatory given the nature of the charge. Obviously, each wanted the other to be unequivocally identified. In fact, two prosecution witnesses testified Tate controlled the bottle of wine while two witnesses implicated Mitchell. This testimony imposed a duty upon the attorney for each defendant to dispute the testimony implicating his client. However, because there was but one attorney, that duty remained unfulfilled. Joint counsel could not contest either version on behalf of one client because to do so would conflict with his duty on behalf of his other client. Consequently, the attorney‘s failure to cross-examine the prosecuting witnesses evidences again the evil arising from joint representation of defendants with conflicting interests.
In sum, the record establishes actual conflicts of interest between Tate and Mitchell. Further, the instances of actual conflict, in totality, show that the attorney did not consistently favor the interests of one client at the expense of his other client‘s interest. Indeed, the fact that both clients testified forced the attorney into the untenable position of being unable to exercise each client‘s constitutional right to cross-examination. Thus, the attorney‘s performance was necessarily impaired as to both defendants.
Having concluded the requisite components of the Cuyler test are satisfied, we turn to the State‘s argument Tate and Mitchell must show prejudice. The State argues the essence of Tate and Mitchell‘s claim is that of ineffective counsel and Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, decided after Cuyler, requires proof of prejudice in addition to actual conflict of interest and adversely impaired performance. There is no merit to the State‘s argument for several reasons.
First, the Supreme Court in Strickland, plainly and expressly reiterated its holding in Cuyler: “[P]rejudice is presumed when counsel is burdened by an actual conflict of interest.” Strickland 104 S.Ct. at 2067. In Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, heavily relied upon by the Cuyler court, the Supreme Court found adversely affected performance without regard to a consideration of whether the omitted cross-examination would have had a beneficial effect on the clients case. See also Camera v. Fogg (2d Cir.1981), 658 F.2d 80, 82 (“We believe it unnecessary to determine whether or not a defense of duress could have been established, for such an inquiry goes to the question of prejudice, an issue which the Supreme Court has held we need not reach.“)
Second, of the recent Indiana cases addressing Cuyler, only Averhart v. State (1984), Ind., 470 N.E.2d 666 and Bean v. State (1984), Ind., 460 N.E.2d 936 refer to a showing of prejudice. However, in Averhart and Bean our supreme court failed to find error because there was no showing of an actual conflict of interest. Therefore, the Averhart and Bean courts were not pronouncing law contrary to Cuyler. The remaining Indiana cases relevant to the issue, which include the three most recent
Finally, Cuyler rejects the necessity of showing actual prejudice. Hence, under Tate and Mitchell‘s Sixth Amendment claim, a defendant who shows an actual conflict and its adverse effect on his attorney‘s representation, need not also show prejudice by affirmatively demonstrating his attorney‘s impaired performance affected the outcome of the trial. Prejudice is presumed. Strickland. Hence, Tate and Mitchell, having shown an actual conflict of interest which adversely affected their lawyer‘s performance, are entitled to a new trial.
Judgment reversed and cause remanded for a new trial.
SULLIVAN, J., concurs.
BUCHANAN, J., dissents, with separate opinion.
BUCHANAN, Judge, dissenting.
As I see it, the effect of the majority opinion is to hand codefendants jointly represented at trial a giant bootstrap with which they can win reversal of convictions at the appellate level by remaining silent at trial, and then asserting conflicting theories of defense on appeal. This legerdemain is accomplished without a showing of actual prejudice. The cases, however, do demand a showing of actual prejudice.
In Cuyler v. Sullivan (1980), 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, the United States Supreme Court declared that, “[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer‘s performance.”1 (Emphasis supplied) (footnote omitted). The Indiana Supreme Court has also addressed this issue. Writing for a unanimous court, Justice Pivarnik observed that “[i]n raising such an issue, the defendant must show that where there was no objection at trial, such as here, the joint representation resulted in actual prejudice.” Bean v. State (1984), Ind., 460 N.E.2d 936, 945 (emphasis supplied).
I cannot accept the majority‘s assertion that the defendants were presumably prejudiced because the focuses of their defenses were different. Tate contended that, although he had been inside the Kroger store, he met Mitchell outside the store and that Mitchell already had the grocery cart full of unpurchased merchandise. Record at 111-12. Tate also claimed to have been drinking all day. When asked if he knew what was occurring on the day of the incident he replied “[n]ot really. I wasn‘t staggering drunk but I can‘t remember much. I remember parts.” Record at 112. Mitchell, on the other hand, contended that he had no memory whatsoever of the incident because of his intoxicated state and continuing alcoholism. Record at 116-17. I can see no real conflict between these theories of defense. Mitchell‘s defense of no recollection effectively precluded any conflict with Tate‘s effort to paint Mitchell as the principal actor in the crime. Moreover, Tate‘s alternate claim of a faulty memory because of drunkenness is entirely consistent with Mitchell‘s similar defense. Furthermore, there is no showing that counsel‘s cross-examination of Tate and Mitchell was in any manner curtailed by his dual representation of the men. Indeed,
The factual conflicts regarding which man possessed the wine bottle and the divergence between Tate‘s testimony and that of the witness who placed him in the store with the grocery cart do not establish actual prejudice as a result of joint representation. It is not unusual for a defendant‘s version of an incident to differ from that of a witness. Conflicts in the evidence are matters exclusively for the trier of fact‘s determination.
Finally, I reject any claim of actual prejudice because the evidence of Tate‘s and Mitchell‘s guilt is overwhelming. Eyewitness testimony established that groceries were removed from the Kroger store without benefit of payment and that both men were active in the attempted appropriation or the ensuing flight. Regardless of which defendant was in the store or which carried the wine bottle, both men could be found guilty of the offense under the provisions of
In Bean, supra, the Indiana Supreme Court upheld the defendants’ convictions despite their similar complaints about joint representation. The conclusion in Bean is apropos here:
“There is no showing that any of the evidence that helped one defendant hurt the other. Defendants do not show they were prejudiced in any way by the fact that they were tried and represented together, nor did they ever indicate in any manner during the trial that they felt they were. There is no merit to this issue.”
Id. at 946. Thus, I cannot concur in the majority‘s attempt to infer prejudice when none is affirmatively established.
The judgment of the trial court should be affirmed.