William M. STEVENSON, Petitioner-Appellant, v. Lanson NEWSOME, Warden, Respondent-Appellee.
No. 84-8494.
United States Court of Appeals, Eleventh Circuit.
Nov. 4, 1985.
775 F.2d 1558
HENDERSON, Circuit Judge:
The rule is well settled that where terms are inconsistent, typewritten terms control printed terms.
This court has long recognized that written matter prevails over printed matter, since it is “presumed to have commanded the stricter attention of the parties.” [Citations omitted]. Since typewritten terms, like handwritten terms, represent the more deliberate and immediate expression of the parties’ meaning than printed terms, typewritten terms control printed terms.
Industrial Machinery, Inc. v. Creative Displays, Inc., 344 So.2d 743, 749 (Ala. 1977). This standard rule of contract construction is explicitly accepted by the parties through the second quoted paragraph of the rider. Because the Pugh clause and the Exhibit B forfeiture clause conflict too seriously to be harmonized, this rule of construction requires that the latter be given effect.4
Defendant makes much of a typed clause declaring the rider to be incorporated into the lease, maintaining that such incorporation removes any special weight given to typewritten terms. We find no merit in this argument. The conflict between terms still remains and the policy reasons for preferring typewritten terms over printed terms are not overcome by “incorporation into” the lease.
We therefore REVERSE the summary judgment for defendant and REMAND for entry of summary judgment for plaintiff on the issue of forfeiture and for further proceedings consistent with this opinion.
Paula K. Smith, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Before HENDERSON and CLARK, Circuit Judges, and HOFFMAN*, District Judge.
HENDERSON, Circuit Judge:
William M. Stevenson was convicted of burglary in the Superior Court of DeKalb County, Georgia. After exhausting his state post-conviction remedies, he filed this petition for a writ of habeas corpus in the
Stevenson and Michael W. Winters, Stevenson‘s brother-in-law, were jointly indicted on two counts of burglary. At the time of his arrest, Winters gave the police a statement that implicated Stevenson in the crimes. Winters’ family retained William Dean, Jr. as Winters’ attorney. Dean also represented Stevenson.1
On the day of the trial, the prosecutor informed the trial judge of a potential conflict of interest inherent in Dean‘s representation of both defendants because he had information indicating that Winters wanted to testify on behalf of the state. The state accordingly moved to sever the two defendants’ cases over Dean‘s objections. The state trial court granted the motion. The court “suspended” Dean from representing Winters during the course of Stevenson‘s trial and appointed the public defender to advise Winters of the possible consequences of his testimony.
Stevenson‘s case was called for trial first. Winters took the stand and freely implicated himself in the burglaries but refused to incriminate Stevenson. The court subsequently allowed the prosecutor to impeach Winters’ testimony with respect to Stevenson‘s involvement and permitted the introduction of Winters’ prior statement implicating Stevenson through the testimony of a detective who had taken the statement. After the statement was read in court, Dean objected to its admission. Stevenson was subsequently convicted of both counts. Following Stevenson‘s trial, Dean represented Winters when he pled guilty to the burglaries.
After the denial of relief following a hearing in the state court, Stevenson filed this petition in the district court which was referred to the magistrate for a report and recommendation.
Stevenson‘s contention that he was denied effective assistance of counsel because the trial court interfered with the exercise of his rights to share counsel and to present a unified defense is essentially a challenge to the correctness of the trial court‘s decision to sever the trials. Under Georgia law, as well as federal law, the decision to grant or deny a motion for severance lies within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion. Cain v. State, 235 Ga. 128, 128-129, 218 S.E.2d 856, 857 (1975); Stevens v. State, 165 Ga.App. 814, 816, 302 S.E.2d 724, 726 (1983)Demps v. Wainwright, 666 F.2d 224, 227 (5th Cir. Unit B), cert. denied, 459 U.S. 844, 103 S.Ct. 98, 74 L.Ed.2d 89 (1982).2
There has been no such showing in this case. We recognize that “[a] common defense often gives strength against a common attack.” Glasser v. United States, 315 U.S. 60, 92, 62 S.Ct. 457, 475, 86 L.Ed. 680, 710-11 (1942) (Frankfurter, J., dissenting). There is no constitutional right, however, to a joint trial. Even had the defendants been tried together, Stevenson had no assurance that Winters would not testify against him. Furthermore, the state trial court was not bound by the strict requirements of
Stevenson next attacks Dean‘s purported conflict of interest. The magistrate‘s report and recommendation to the court concluded that there was no actual conflict because Winters’ testimony did not implicate Stevenson, Dean labored under no impediment in cross-examining Winters, and Dean had no reason to impeach Winters since his testimony did not damage Stevenson‘s case. Stevenson argues that this finding was erroneous because the trial court only temporarily suspended Dean from representing Winters, instead of disqualifying him from further participation. Thus, he says Dean owed a continuing duty of loyalty to Winters.
The threshold question is whether there was an actual conflict of interest. The possibility of conflict does not rise to the level of a sixth amendment violation. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 347 (1980). “An actual conflict exists if counsel‘s introduction of probative evidence or plausible arguments that would significantly benefit
There is no evidence in this case that Dean was subject to divided loyalties sufficient to establish an actual conflict of interest. Upon being informed of the potential conflict, the state trial court severed the trials and suspended Dean from representing Winters during the course of Stevenson‘s trial. The court also refused to allow Winters to discuss with Dean his testimony against Stevenson. Furthermore, Stevenson has not proved that Dean was forced to make choices that would benefit one defendant at the other‘s expense.
Even assuming that there was an actual conflict of interest, there is still no infringement of Stevenson‘s sixth amendment rights. The Supreme Court‘s decision in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) has cast considerable doubt upon the correctness of the holding in Baty v. Balkcom that a petitioner need not demonstrate that the conflict had an adverse effect on counsel‘s performance to establish a sixth amendment violation. See Ruffin v. Kemp, 767 F.2d 748, 751 & n. 6 (11th Cir.1985). Compare Burger v. Kemp, 753 F.2d 930, 942 (11th Cir.1985) (Johnson, J., dissenting) (defendant must show that counsel actively represented conflicting interests and that actual conflict adversely affected counsel‘s performance) with Baty v. Balkcom, 661 F.2d at 397 (Johnson, J.) (adverse effect on counsel‘s representation need not be shown). In Strickland, the Court said
One type of actual ineffectiveness claim warrants a similar, though more limited presumption of prejudice. In Cuyler v. Sullivan, ... the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel‘s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g.,
Fed. Rule Crim.Proc. 44(c) , it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and ‘that an actual conflict of interest adversely affected his lawyer‘s performance.’
466 U.S. at 692, 104 S.Ct. at 2067, 80 L.Ed.2d at 696-97 (emphasis added) (quoting Cuyler v. Sullivan, 446 U.S. 348, at 350, 100 S.Ct. 1718, at 1719, 64 L.Ed.2d 346, at 347). In order to warrant habeas corpus relief, the petitioner has to show not only an actual conflict of interest but also that the conflict adversely affected his lawyer‘s representation. Winters’ trial testimony did not implicate Stevenson in the burglaries. In such circumstances, as the magistrate correctly pointed out, there was no reason for Dean to impeach Winters. On cross-examination, Dean attempted to show that Winters’ prior inculpatory statement was a product of promises made to him by the detective and not Winters’ own free will. Stevenson points to no different defense strategy which could have been employed by another lawyer. We hold that Stevenson has not shown an adverse effect in this case.
Finally, Stevenson claims that Dean was ineffective because he failed to object to the state‘s introduction of Winters’ prior
To prevail on this ground, Stevenson must prove that his counsel‘s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. at 668, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. It must be shown that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. The acts or omissions forming the basis for the ineffectiveness claim must be outside the “wide range of professionally competent assistance.” Id. at 695, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.
Dean testified that he decided not to object to the state‘s cross-examination of Winters concerning his prior statement because he thought his client‘s best interests would be served by showing that the police used undue pressure in obtaining the statement. Deposition of William Dean, Jr. at 10-11. Dean also thought the testimony was harmless to Stevenson and more damaging to the state‘s case. Id. at 11-12. The prosecutor was of the same view. Deposition of Robert E. Wilson at 17-19. Stevenson urges that even if Dean made a proper tactical decision not to object to Winters’ testimony, he had no basis for failing to object to introduction of the statement through the testimony of the detective. The record reveals that Dean did object to the admission of the statement on voluntariness grounds. Transcript of State Habeas Corpus Hearing at 88. In light of all the circumstances, we cannot say that counsel‘s conduct was constitutionally deficient in this instance.
Even assuming that Dean was ineffective by failing to object, the magistrate correctly found that Stevenson failed to establish the requisite prejudice. Georgia law provides that:
A party may not impeach a witness voluntarily called by him, except where he can show to the court that he has been entrapped by said witness by a previous contradictory statement.
The prosecutor testified that he assumed when Winters volunteered to testify that he would do so consistently with his prior statement. Deposition of Robert E. Wilson at 10-11, 15. When Winters later refused to incriminate Stevenson as he had previously told the detective, the prosecutor was entitled to impeach Winters with his prior statement. Therefore, any objection to admission of the statement would have been without merit.
For the foregoing reasons, the judgment of the district court denying Stevenson‘s petition for habeas corpus is AFFIRMED.
CLARK, Circuit Judge, dissenting:
I respectfully dissent from the majority opinion because Stevenson‘s attorney, William Dean, Jr., was operating under an actual conflict of interest that adversely affected his representation of Stevenson and thus infringed upon Stevenson‘s Sixth Amendment rights.
Although the majority correctly recognizes that the threshold question is whether there was an actual conflict of interest, it has incorrectly concluded that there is no evidence that Dean was subject to divided loyalties sufficient to establish an actual conflict of interest.
The critical issue in this case is whether a temporary suspension can eliminate an actual conflict of interest. If Dean had continued to represent Winters and Stevenson, there would be no doubt that Dean was operating under an actual conflict of interest. Similarly, had Dean been removed from Winters’ case entirely there would be no argument that the conflict of interest was adequately eliminated. However, the trial court in this case merely suspended Dean. By only suspending Dean from representing Winters for the duration of Stevenson‘s trial, the trial court created a situation that was extremely conducive to conflicting loyalties and duties.
The existence of an actual conflict is demonstrated by Dean‘s testimony at the habeas hearing and his conduct at trial. Dean testified that while Winters was on the stand he fully expected to continue to represent him. It is apparent from this testimony that when Dean made the tactical decision to cross-examine Winters, he realized that he would be representing Winters in the future. Dean did in fact subsequently represent Winters at Winters’ trial.
Dean‘s testimony demonstrates that the actual conflict of interest was not eliminated when the trial court merely suspended Dean. Dean was considering his future representation of Winters while he was representing Stevenson and while Winters was on the witness stand. Had Dean been forbidden from representing Winters further, it is probable that Dean‘s thoughts would have been focused entirely on Stevenson‘s defense.
As a reviewing court, we cannot be certain that Dean‘s zeal, judgment or general trial conduct was not affected by this conflict. As the former Fifth Circuit observed in Castillo v. Estelle:
When there is a conflict of interest such as exists in this case, the prejudice may be subtle, even unconscious. It may elude detection on review. A reviewing court deals with a cold record, capable, perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty.
Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974).
I also disagree with the majority‘s conclusion that Dean was not forced to make choices that would benefit one defendant at the expense of the other.
In Barham v. United States, 724 F.2d 1529 (11th Cir.1984) we observed that:
“If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interests of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.”
Id. at 1535 (quoting Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979)). We conclude that the attorney had “conflicting duties to his two clients and this conflict became actual when he was required to cross-examine [his client].” Id.
It was in Winters’ best interest to be cross-examined about the voluntariness of the purported statement given to the investigator. Such an examination could have begun to establish the theory that the statement made by Winters was involuntary and thus should not be admitted at Winters’ trial. On the other hand, if Dean had not been burdened with conflicting loyalties, he might have been able to recognize that he owed a duty to Stevenson not to cross-examine Winters about the purported statement. Such a tactic could have prevented further discussion about the statement and additional questioning by the prosecutor. This would have been an effective tactic because Dean could have attempted to prevent the investigator from
II.
The majority has also properly recognized that a petitioner must prove that an actual conflict of interest adversely affected his lawyer‘s representation. However, it has erred in its assumption that even if an actual conflict existed, there was no infringement of Stevenson‘s Sixth Amendment rights because he did not show an adverse effect in this case. In my view, the failure of Dean to object to the state‘s impeachment of its own witness (Winters) not only illustrated that an actual conflict existed but adversely affected Stevenson.
Furthermore, the majority errs when it assumes that Dean was ineffective by failing to object, and concludes that the magistrate nevertheless was correct when it found that Stevenson failed to establish the requisite prejudice.1 The majority reasons that it was not error to allow the state to impeach Winters under
The majority, however, fails to mention
The statute protects a defendant from a co-conspirator‘s declarations “made after the criminal enterprise has ended [by providing that the declarations] are evidence only against the one making them.” Banks v. State, 113 Ga.App. 661, 149 S.E.2d 415 (Ga.Ct.App.1966). In this case, Dean could have persuasively argued that the criminal enterprise had ended when Winters gave the statement to the agent at the police station. See Price v. State, 239 Ga. 439, 238 S.E.2d 24, 25 (Ga.1977) (statute “prevented admission into evidence of a co-defendant‘s statement, through a police officer-witness because the statement, which was clearly in the nature of a confession, was made after all three suspects had been arrested and identified.“).
Moreover, the fact that Winters was sworn as a witness and testified would not have prevented the application of
Dudley v. State, 148 Ga.App. 560, 251 S.E.2d 815 (Ga.Ct.App.1978) illustrates that contrary to the majority‘s conclusion that an objection to the admission of the statement would have been without merit, Dean‘s failure to object on the grounds of
This case is also similar to Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965).2 In Douglas, a co-defendant was called to testify in the petitioner‘s trial but, invoking the privilege against self-incrimination, refused to answer any questions concerning the alleged crime. Under the guise of cross-examination, a document, said to be the co-defendant‘s signed confession, was read to the jury. Each time the co-defendant was asked if he made the statement in the document, he refused to answer. The Supreme Court held:
The alleged statements clearly bore on a fundamental part of the State‘s case against petitioner. The circumstances are therefore such that “inferences from a witness’ refusal to answer added critical weight to the prosecution‘s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.”
380 U.S. at 420, 85 S.Ct. at 1077 (emphasis added).
Although the prosecutor in this case did not introduce the statement through Winters, his actions had the same effect. Winters, like the co-defendant in Douglas, refused to testify about Stevenson‘s involvement in the crime. The prosecutor, like the attorney in Douglas, nevertheless managed to introduce the damaging statement through the guise of impeaching Winters. Clearly, Winters’ statement was a fundamental component of the state‘s case against Stevenson. The statement provided:
We drove up to 2664 Columbia Drive and knocked on the door. No one was home. So I kicked the door in and me and Billy went inside and took the stuff out. We then went to the house next door and Billy knocked the window out and we went inside and took out some more stuff. We loaded all the stuff in my truck and left. Billy is William Stevenson.
Investigator Newsome is writing this statement for me at my request.
Moreover, the fact that Winters testified that he committed the burglary contributed to the prejudicial impact of the statement for in the minds of the jury, the statement could have been an “eyewitness” account of the crime. Dean‘s objection came after the statement was read and only related to the voluntariness of the statement. This action alone demonstrates that the conflict adversely affected Dean‘s representation of Stevenson.
As in Cuyler, the “evidence of counsel‘s ‘struggle to serve two masters [cannot] seriously be doubted.‘” Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980). Since counsel was burdened with an actual conflict of interest that adversely affected his performance and therefore impaired Stevenson‘s defense, I would reverse the decision of the district court and remand the case to the district court with instructions to issue the writ of habeas corpus.