State v. White

• Citation: 80 Wn.App. 406,907 P.2d 310
• Decision Date: 19 December 1995
• Docket Number: 18234-3-II,17535-5-I,Nos. 17302-6-I,s. 17302-6-I
• Court: Court of Appeals of Washington
• Parties: The STATE of Washington, Respondent, v. Dirck Morgan WHITE, aka Luis Cruz, Appellant. The STATE of Washington, Respondent, v. Keon Sang SHIM, Appellant. In re the Personal Restraint of Keon Sang SHIM, Petitioner.

Page 406

80 Wn.App. 406

907 P.2d 310

The STATE of Washington, Respondent, v. Dirck Morgan WHITE, aka Luis Cruz, Appellant.

The STATE of Washington, Respondent, v. Keon Sang SHIM, Appellant.

In re the Personal Restraint of Keon Sang SHIM, Petitioner.

Nos. 17302-6-II, 17535-5-II, 18234-3-II.

Court of Appeals of Washington,

Division 2.

Dec. 19, 1995.

Patricia Anne Pethick, Andrew T. Stave, Tacoma, for appellant.

Thomas Charles Roberts, Pierce County Deputy Pros. Atty., Tacoma, for respondent.

SEINFELD, Chief Judge.

Dirck Morgan White and Keon Sang Shim appeal their convictions of first degree assault. Each claims prejudice arising out of an alleged conflict of interest involving defense counsel below and each challenges the sufficiency of the evidence. White further claims prosecutorial misconduct, ineffective assistance of counsel, and cumulative errors. We affirm.

FACTS

Brian Allen Tappin was shot in the hip as he and Lester Deamus were preparing to drive away from a convenience store parking lot. This occurred shortly after Tappin and Deamus exited their car and exchanged words with the occupants of a white Camaro. As Tappin turned away, a silver colored handgun protruded from the Camaro's passenger window. A shot rang out, and a bullet passed through Tappin's arm and lodged in his hip. "Almost simultaneously," the Camaro sped away.

Deamus drove Tappin to the hospital where the two were interviewed by the police. Deamus and Tappin both described the driver of the Camaro as an Hispanic male. Deamus reported that the passenger, an Asian male, had fired the shot.

Two hours later, police stopped a white Camaro containing two persons matching the descriptions of the suspects in the shooting and arrested its occupants. White was the driver and Shim was the passenger. Police recovered a silver colored handgun from under the passenger's seat and a spent bullet casing from the rear seat cushions behind the driver.

The State charged Shim with first degree assault. One week later, an appointed defense attorney (Appointed Counsel) entered a notice of appearance on Shim's behalf.

Appointed Counsel reviewed Shim's file and the police reports, but did not meet or talk to Shim. He did, however, discuss the case with Shim's stepfather, Jerzy Bilski, and allegedly suggested that Shim should consider a guilty plea. Bilski, unhappy with Appointed Counsel's assessment, hired an attorney to represent his stepson. Eleven days after Appointed Counsel's appearance, the retained attorney filed his notice of appearance. The following week the trial court entered an order allowing Appointed Counsel's withdrawal and the retained attorney's substitution as counsel of record.

Two weeks later the State named White as a codefendant, charging him with rendering criminal assistance in the first degree and, two weeks after that, the same Appointed Counsel filed a notice of appearance on White's behalf. The State later amended the information to add an additional charge of first degree assault against White.

At trial, the State theorized that Shim fired the gun, and that White, as the driver of the car, acted as Shim's accomplice. The codefendants pursued conflicting defenses, each attempting to exculpate himself by inculpating the other.

Neither codefendant brought Appointed Counsel's earlier representation of Shim to the attention of the trial court. In an affidavit filed after trial, Appointed Counsel stated that, although White's police report "seemed familiar," he did not realize he had represented both codefendants in the same matter until it was brought to his attention after judgment.

On appeal, White and Shim both argue that we must reverse their convictions because of Appointed Counsel's undisclosed conflict of interest. White asserts that the conflict denied him his Sixth Amendment right to effective assistance of counsel. Although Shim makes a similar argument in his brief, he acknowledged at oral argument that he sought reversal based solely on Appointed Counsel's breach of the Rules of Professional Conduct.

I THE ATTORNEY-CLIENT RELATIONSHIP

Before addressing Appellants' respective claims, we consider whether Shim and Appointed Counsel entered into an attorney-client relationship.

The existence of an attorney/client relationship is a question of fact, the essence of which may be inferred from the parties' conduct or based upon the client's reasonable subjective belief that such a relationship exists. Even a short consultation may suffice to create an attorney/client relationship, and an important factor in determining the existence of the relationship is the client's subjective belief.

Teja v. Saran, 68 Wash.App. 793, 795-96, 846 P.2d 1375, review denied, 122 Wash.2d 1008, 859 P.2d 604 (1993) (citation omitted).

The factual record regarding this issue is ambiguous. Although Appointed Counsel appeared on behalf of Shim, Shim never met or had any direct communication with Appointed Counsel and never brought the conflict of interest to the attention of his new attorney during the trial. We need not conclusively decide this issue because, even assuming that an attorney-client relationship did exist, Appellants' claims nonetheless fail for the reasons we discuss below.

II

EFFECTIVE ASSISTANCE OF COUNSEL: WHITE

The Sixth Amendment affords a criminal defendant the right to effective assistance of counsel, free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981); State v. Myers, 86 Wash.2d 419, 424, 545 P.2d 538 (1976). We review a challenge to the effective assistance of counsel de novo. Mannhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 488 U.S. 908, 109 S.Ct. 260, 102 L.Ed.2d 249 (1988).

An attorney's conflict of interest may create reversible error in two situations without a showing of actual prejudice. In re Richardson, 100 Wash.2d 669, 675 P.2d 209 (1983). First, "reversal is always necessary where a defendant shows an actual conflict of interest adversely affecting his lawyer's performance." Richardson, 100 Wash.2d at 677, 675 P.2d 209; see Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In addition, a trial court commits reversible error if it "knows or reasonably should know of a particular conflict into which it fails to inquire." Richardson, 100 Wash.2d at 677, 675 P.2d 209; see Wood, supra; Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). These general rules are applicable to any situation where a defendant alleges ineffectiveness of counsel related to counsel's representation of conflicting interests. Richardson, 100 Wash.2d at 677, 675 P.2d 209; see State v. Hatfield, 51 Wash.App. 408, 410, 754 P.2d 136 (1988). White asserts that both rules apply here.

A. Actual Conflict of Interest

We engage in the following two-part inquiry to determine whether an actual conflict of interest deprived a defendant of effective assistance of counsel: (1) was there an actual conflict of interest; and (2) if so, did the conflict adversely affect the performance of defendant's attorney?

[T]he rule in conflict cases is "not quite the per se rule of prejudice that exists for [other] Sixth Amendment claims." Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). Rather, "[p]rejudice is presumed only if the defendant demonstrates that the counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance.' " (Italics ours.) Strickland, 466 U.S. at 692 (quoting Cuyler, 446 U.S. at 348, 350 ); see also Richardson, 100 Wash.2d at 677 ....

Hatfield, 51 Wash.App. at 413, 754 P.2d 136.

An actual conflict of interest exists when a defense attorney owes duties to a party whose interests are adverse to those of the defendant. State v. Byrd, 30 Wash.App. 794, 798, 638 P.2d 601 (1981). Rule of Professional Conduct (RPC) 1.7(b) prohibits an attorney from representing a client if the attorney's duties to another materially limit that representation. ¹

Although Appointed Counsel may have committed a technical violation of RPC 1.7(b), there is no indication that he "actively" represented conflicting interests. He never directly communicated with Shim, and Shim does not allege that Appointed Counsel was privy to any confidences that could create an active conflict of interest. Appointed Counsel states that it was not until some time after trial that he even remembered that he had appeared for Shim. Thus, there is nothing in the record to support White's allegation that Appointed Counsel's allegiance to him was impaired.

Nor does the record contain any indication that the alleged conflict of interest adversely affected Appointed Counsel's defense of White. White concedes as much in his brief, stating that, but for the ostensible conflict of interest, Appointed Counsel performed satisfactorily.

Nonetheless, White contends we must presume an adverse impact from the RPC 1.7(b) violation. White is confusing standards. A RPC 1.7(b) violation may provide grounds for disqualification on the trial level. See Westerman v. Cary, 125 Wash.2d 277, 300-301, 885 P.2d 827 (1994), 892 P.2d 1067 (1995). The RPC, however, does not embody the constitutional standard for effective assistance of counsel on appeal.

Lacking any evidence in the record that Appointed Counsel's appearance for Shim impaired his defense of White, we will not presume prejudice.

B. The Trial Court's Failure to Inquire

White contends the trial court reasonably should have known about Appointed Counsel's conflict of interest from the court file. In particular, he argues that Shim's severance motion and Appointed Counsel's notice of appearance should have alerted the trial court to the potential conflict. Accordingly, he argues that the trial court's failure to inquire about the conflict jeopardized his right to effective counsel and warrants reversal of...