Hoffman v. Leeke, 89-6785
| Decision Date | 09 May 1990 |
| Docket Number | No. 89-6785,89-6785 |
| Citation | 903 F.2d 280 |
| Parties | John R. HOFFMAN, Petitioner-Appellant, v. William D. LEEKE, Commissioner, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George Ellard (argued), Williams & Connolly, Washington, D.C. (Lane Heard, III, on brief), for petitioner-appellant.
Donald J. Zelenka, Chief Deputy Atty. Gen. (argued), Columbia, S.C. (T. Travis Medlock, Atty. Gen., Frank L. Valenta, Jr., Asst. Atty. Gen., on brief), for respondent-appellee.
Before ERVIN, Chief Judge, and HALL and WILKINS, Circuit Judges.
John R. Hoffman, a South Carolina inmate, appeals the district court's denial of his petition for a writ of habeas corpus brought under 28 U.S.C. Sec. 2254. Hoffman challenges his conviction for being an accessory before the fact to murder on the grounds that he was denied his Sixth Amendment right to effective assistance of counsel. For the reasons set forth below, we find that Hoffman's contention has merit and we vacate the judgment and remand the case to the district court with directions to grant the writ.
Hoffman's conviction is based on his role in a murder for hire scheme originated by him to seek revenge against his wife's boyfriend. The evidence at trial showed that Roy Lowry was shot and killed by a paid killer, Johnny Hamilton, who was recruited by Hoffman's brother-in-law, George Moose, and a third person and friend of Moose, Bill Bryant, at Hoffman's instigation. Hamilton, his girlfriend Kathy Danielson, Moose, Bryant and Hoffman were all charged for their respective roles in the murder.
Moose was arrested on June 27, 1979. On July 2, 1979, Hoffman retained J.M. "Bud" Long to represent Moose. Hoffman's wife paid the $15,000 charged by Long. On July 26, 1979, after Hoffman had been questioned several times by the police about the murder and threatened with arrest, he asked Bud Long to represent him as well. Long agreed and Hoffman paid him an additional $15,000. Danielson subsequently hired Long to represent her also. On August 17, 1979, a warrant was issued for Hoffman's arrest. The following day, Long negotiated a verbal plea agreement for Moose.
When the case was called for trial in Horry County on October 15, 1979, Long represented Hoffman, Moose and Danielson. Prior to the trial, the judge held an in camera hearing at which he inquired of each of the defendants individually and then as a group about Long's joint representation of them. The following colloquy took place between the court and Hoffman:
. . . . .
. . . . .
Following similar colloquies with each defendant, the court inquired of all three as a group whether they were satisfied with Long's representation and each answered affirmatively. Long then stated to the court that he saw no possibility of a conflict of interest and each of the defendants agreed. The trial began but ended in a mistrial shortly after jury selection.
Venue was subsequently changed to Georgetown County and Long hired a local attorney, William Doar, as co-counsel. On November 26, 1979, before the start of the second trial, the judge held an in camera hearing and asked each defendant whether they recalled the questions posed at the first trial and whether they wished to continue with Long as their attorney. Each answered affirmatively. On the following day, the court accepted plea agreements from Moose and Danielson in which each agreed to testify for the state at Hoffman's trial. 1
Moose was the key prosecution witness against Hoffman. He testified that he hired Johnny Hamilton to kill Roy Lowry because "somebody had raped" his sister, Hoffman's wife. He said he acted at Hoffman's instigation. Moose claimed that Hoffman had proposed the idea and later in a telephone conversation encouraged him to continue the search for a trigger man. William Doar conducted the cross-examination of Moose. Hoffman took the stand in his own behalf and testified that in late November 1978, when he told Moose about Roy Lowry and Hoffman's wife, Moose had first offered to kill Lowry himself. Hoffman testified that after initially encouraging Moose to look for someone to kill Lowry, in late February or early March of 1979, he told Moose the plan was off and took back the money he had given Moose to pay a killer. Hoffman testified that he learned of the murder sometime in May 1979, when Moose demanded payment for the paid killer, claiming that Moose and Hoffman would be the next victims if payment were not made. Hoffman denied the telephone conversation with Moose in which he allegedly told Moose to keep looking for a killer. He did, however, testify that he was drinking heavily during this period. Throughout the trial, the prosecutor continually and repeatedly made reference to Long's representation of Moose and Danielson, as well as Hoffman. A jury found Hoffman guilty as an accessory before the fact to murder and he was sentenced to life in prison.
Following his conviction, Hoffman moved for a new trial based upon, inter alia, ineffective assistance of counsel arising out of Long's conflict of interest in representing the multiple defendants. The trial judge denied the motion. The South Carolina Supreme Court affirmed Hoffman's conviction. State v. Hoffman, Mem.Op. 83-MO-57 (March 30, 1983). Hoffman exhausted his state remedies and on April 4, 1986, filed a petition for writ of habeas corpus in federal district court. The case was referred to a magistrate who, following an evidentiary hearing, found that Hoffman freely, voluntarily and intelligently waived his right to conflict-free counsel and recommended that the application for habeas corpus relief be denied. The district court adopted the magistrate's report and recommendation and dismissed the petition. Hoffman appeals.
The following evidence was adduced at the hearing held before the magistrate. William Doar testified that he was retained by Long when Hoffman's trial was transferred from Horry County to Georgetown County. His function was primarily to assist in selection of the jury and jury argument. Doar testified that Long remained the principal attorney for Hoffman and that he, Doar, did not participate in the preparation of the case, but did participate in conferences during trial. He did not recall the conference just prior to trial that was held in chambers between the judge and the three defendants concerning a possible conflict of interest. Nor did he recall any other discussions concerning a possible conflict of interest. Doar could not recall his cross-examination of Moose, did not know why he conducted the cross-examination, did not recall preparing for the cross-examination and did not recall any conferences with Long or Hoffman concerning the cross-examination of Moose. Doar considered himself to be in the case to add "local flavor."
George Moose testified that his sister, Hoffman's wife, paid Long $15,000 to represent him and that he selected Long because everyone in the Horry County jail recommended him. He entered into a plea bargain agreeing to testify for the state in return for a reduced sentence. He could have received the death penalty if convicted of the original charges, so he thought the plea bargain under which he was to receive a twenty-year sentence was a good one. The plea bargain required Moose to give a statement to the police. He did so on August 21, 1979, on Long's advice. The statement implicated Hoffman.
Moose also testified that he was never told by Long that he would be a witness against Hoffman and did not recall telling Hoffman he would be a witness against him. Nor did he give Hoffman a copy of his statement. He followed Long's initial instructions, which were not to discuss the case with anyone, including his codefendants. Moose testified that he recalled no meetings concerning the...
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