Austin v. Erickson

• Decision Date: 20 April 1973
• Docket Number: No. 72-1385.,72-1385.
• Citation: 477 F.2d 620
• Parties: Donna AUSTIN, Petitioner-Appellant, v. Don R. ERICKSON, Warden of the South Dakota Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

477 F.2d 620 (1973)

Donna AUSTIN, Petitioner-Appellant, v. Don R. ERICKSON, Warden of the South Dakota Penitentiary, Respondent-Appellee.

No. 72-1385.

United States Court of Appeals, Eighth Circuit.

Submitted November 17, 1972.

Decided April 20, 1973.

Marvin K. Bailin, Sioux Falls, S. D., for appellant.

William J. Srstka, Jr., Asst. Atty. Gen., Pierre, S. D., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, LAY, Circuit Judge and DURFEE, Senior Judge of the United States Court of Claims.^*

DURFEE, Senior Judge.

Donna Jean Austin, appellant, petitioned the United States District Court for the District of South Dakota for a writ of habeas corpus, pursuant to 28 U.S.C. §§ 2241 and 2254, against the Warden of the South Dakota State Penitentiary, Don R. Erickson, appellee. Austin had exhausted her remedies upon affirmance of denial of her application for a state writ of habeas corpus by the Supreme Court of South Dakota, Judge Wollman dissenting. Austin v. Erickson, S.D., 195 N.W.2d 395 (1972). Petitioner-appellant claimed her confinement was imposed upon a conviction and life sentence which were the result of a trial in which she was deprived of the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution. The Federal District Court denied the petition in a memorandum opinion reported at 343 F. Supp. 22 (D.S.D.1972), and ordered the Writ of Habeas Corpus quashed on June 12, 1972. Donna Austin was remanded to the custody of appellee. This appeal from denial of the petition for writ of habeas corpus and order quashing the writ followed. We reverse.

The central issue is whether there was a conflict of interest arising from representation of Austin and a co-defendant by one attorney, which deprived her of effective assistance of counsel.¹

Donna Austin and her companion, Ronnie Goode, were separately charged by the State of South Dakota with first degree manslaughter in killing William L. Doty, appellant's two and one-half year old son by a former marriage. One lawyer was appointed to represent both Austin and Goode as indigents. Their preliminary hearings were combined but they were separately tried.

Austin was tried first and convicted by a jury of first degree manslaughter for aiding and abetting Goode in killing her infant son. Appellant's conviction was affirmed on appeal. State v. Austin, 84 S.D. 405, 172 N.W.2d 284 (1969).

Goode was separately tried and also convicted by a jury of first degree manslaughter. On appeal his conviction was reversed by the South Dakota Supreme Court on the grounds that the appointment of the same counsel to represent both defendants created a conflict of interest which denied Goode his right to effective assistance of counsel. State v. Goode, 84 S.D. 369, 171 N.W.2d 733 (1969). The attorney for both defendants had called Goode as a witness at the Austin trial. Thereafter,

* * * Although advised by the court of his constitutional right to refuse to testify to any matter which might tend to incriminate him, Goode testified fully and in detail about his relationship with Mrs. Austin and his care and handling of the deceased child. He related how he took care of the child while Mrs. Austin worked. He admitted using physical force as disciplinary measures. On the day of the child\'s death he admitted shaking the child shortly after which the boy was rushed to the hospital and died. His testimony could serve but one purpose—to deflect the glare of guilt away from Mrs. Austin. 171 N.W.2d at 735.

Goode's testimony was later read into the record in Goode's trial and fulfilled the State's burden of proof against Goode as to certain elements of the crime.

Appellant's principal contention is that there was a divergence of interests between Austin and Goode arising from the nature of the theory of the State against each defendant.

The State's theory was that Goode had directly committed the fatal act resulting in death of the child while the State's theory against Austin was that she aided and abetted Goode in failing to prevent Goode from administering the fatal beating.² Petitioner-appellant argues that the separate theories gave rise to separate potential defenses. Whereas Goode could only defend on grounds of excusable homicide, Austin could rely upon a reciprocal defense of excusable homicide as well as a conflicting defense antagonistic to Goode, of lack of responsibility. To assert and prevail upon the second defense, petitioner-appellant would have had to introduce evidence in support of her defense which could tend to cast the blame on Goode alone. Appellant argues in part that counsel did make a marginal effort to pursue the defense of lack of responsibility on her behalf but that, beleagured by his divided loyalty and the actual conflict of interests, the attorney could not develop the defense properly through vigorous and full examination of Goode and in argument.

The leading case in this area is Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L.Ed. 680 (1942). In that case the Supreme Court enshrined the principle:

* * * The `assistance of counsel\' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired. 315 U.S. at 70, 62 S.Ct. at 465.

No one seriously disputed the Sixth Amendment applies equally to the individual states through the due process clause of the Fourteenth Amendment. The principal announced in Glasser also binds the states.

In Glasser the co-defendants Glasser and Kretske shared the same attorney. The possibility of the inconsistent interests of Glasser and Kretske was brought home to the trial court, but the court created joint counsel anyway. Glasser, supra, at 71, 62 S.Ct. 457.

The Supreme Court noted:

Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused. Speaking of the obligation of the trial court to preserve the right to jury trial for an accused, Mr. Justice Sutherland said that such duty \'is not to be discharged as a matter of rote, but with sound and advised discretion, with an eye to avoid unreasonable or undue departure from that mode of trial or from any of the essential elements thereof, and with caution increasing in degree as the offense dealt with increase in gravity.\' Patton v. United States, 281 U.S. 276, 312-313, 50 S.Ct. 253, 263, 74 L.Ed. 854, 70 A.L.R. 263. The trial court should protect the right of an accused to have the assistance of counsel. Emphasis added. 315 U.S. at 71, 62 S.Ct. at 465.

The Supreme Court later added:

Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed even suggesting, that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of the divergence is brought home to the court. 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680.

In Glasser, supra, 72-75, 62 S.Ct. 457, the possibility of divergent interests manifested itself in actual conflict of interest during the course of the trial in that it inhibited counsel's conduct of Glasser's defense. The Court in Glasser concluded:

Our examination of the record leads to the conclusion that Stewart\'s (counsel\'s) representation of Glasser was not as effective as it might have been if the appointment had not been made. 315 U.S. at 76, 62 S.Ct. at 468.

Where the conflict of interest appears from the outset, it is clear error for the Court to force the same counsel on both accused. See Larry Buffalo Chief v. State of South Dakota, 425 F.2d 271 (8th Cir. 1970). And it is the rule in this circuit that no reversible error is committed by a District Court in assigning a single attorney to represent two or more co-defendants in a pending criminal action, absent evidence of an actual conflict of interest or evidence pointing to a substantial possibility of a conflict of interest between the co-defendants. United States v. Williams, 429 F.2d 158, 161 (8th Cir. 1970), cert. denied, 400 U. S. 947, 91 S.Ct. 255, 27 L.Ed.2d 253.

In the instant case appellant Austin has not argued that at the time of appointment of joint counsel the trial judge failed to conduct a "careful inquiry and satisfy himself that no conflict of interest is likely to result and that the parties have no valid objection." Williams, supra, at 161. Rather appellant argues that the trial judges "should have been aware" of the conflict when he made the appointment of counsel, essentially because appellant had available to her a potential, though unarticulated, defense intrinsically antagonistic to Goode's interests.³ We do not think that appellant made a sufficient showing to establish an actual conflict arising from the outset or a "substantial possibility" of a conflict of interest at the outset which was brought home to the court. Whether the trial court should have foreseen the conflict and appointed separate counsel is not then the pivotal issue in this case. In this respect this case is similar to Sawyer v. Brough, 358 F.2d 70, 74 (4th Cir. 1966). What is determinative is that the possible divergence of interests of Austin and Goode developed into a clear and actual conflict of interest in counsel's representation of Goode and Austin during the course of Austin's trial limiting and inhibiting the attorney's conduct of Austin's defense.

The conflict of interest was most evident when Goode took the stand at Austin's trial on her behalf. Before Goode testified, the court advised him of his privilege against self-incrimination and specifically stated that it would permit counsel to...