Baty v. Balkcom

• Decision Date: 16 November 1981
• Docket Number: No. 80-7668,80-7668
• Citation: 661 F.2d 391
• Parties: Willie Fred BATY, Petitioner-Appellant, v. Charles R. BALKCOM, Warden, The Attorney General of the State of Georgia, Respondents-Appellees. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 391

661 F.2d 391

Willie Fred BATY, Petitioner-Appellant, v. Charles R. BALKCOM, Warden, The Attorney General of the State of Georgia, Respondents-Appellees.

No. 80-7668.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

Nov. 16, 1981.

Grace E. Evans, Asst. Federal Public Defender, Augusta, Ga., for petitioner-appellant.

Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., M. Carr Ferguson, Asst. Atty. Gen., Michael L. Paup, Chief App. Section, John F. Murray, Acting Asst. Atty. Gen., Tax Division, Dept. of Justice, Washington, D. C., for respondents-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before FAY, FRANK M. JOHNSON, Jr. and THOMAS A. CLARK, Circuit Judges.

FRANK M. JOHNSON, Jr., Circuit Judge:

Willie Fred Baty appeals the district court's denial of his habeas corpus petition, 494 F.Supp. 960, claiming that he was denied at his original trial the right to effective assistance of counsel guaranteed by the Sixth Amendment. ¹ We reverse.

I.

Baty and Leroy Miller, arrested for the armed robbery of a grocery store, each developed a different story, contradicting that of the other defendant, in preparation for his defense at trial. Miller asserted that he was a mere hitchhiker picked up by Baty, that he had nothing to do with the robbery, and that he did not have a gun during a gunfight with police following the robbery. In his trial testimony, Miller also placed Baty in the grocery store at the time of the robbery. Baty, on the other hand, maintained that the state had to prove that he was at the store during the robbery and that he also did not have a gun. Had he testified he would have implicated Miller in the robbery. Since each defendant would indicate that the other defendant was involved in the robbery, and since each, by asserting that he did not possess the gun introduced at trial, would necessarily imply that the other defendant had the gun, ² testimony by either would be inconsistent with the other defendant's assertion of innocence.

Shortly after their arrest both defendants had retained William D. Smith as counsel. Smith, concluding that the contradictory stories caused a conflict of interest so severe as to render him unable to defend Baty and Miller jointly, filed a motion for severance and asked another attorney, Charles M. Taylor II, to be on "standby" in the event the court denied the motion. On the day before the trial, the court did deny the motion. Smith announced at the beginning of trial that Taylor would be counsel for Baty.

Taylor had been researching legal aspects of the case in Smith's employ ³ since shortly after defendants' arrest. Aside from a visit to the scene of the crime, Taylor's familiarity with factual aspects of the case was limited to information gleaned from discussions with Smith. He interviewed no witnesses, could not recall having read a transcript of the preliminary hearing, and only talked to Baty for twenty or thirty minutes on the morning of trial. Although he later indicated that he would have been better prepared for Baty's defense had he interviewed some witnesses, Taylor did not move for a continuance.

Smith and Taylor worked closely together at trial. Trial tactics and defense were a "joint venture" and decisions as to whether Baty and Miller would testify were made by both defendants and both counsel. ⁴ Smith argued a motion for judgment of acquittal on behalf of Baty as well as of Miller; Smith also rested the defense of both defendants. Taylor made no opening statement on Baty's behalf. Although a major portion of Baty's defense would rely on the absence of any proof that Baty had a gun, Taylor was unaware that Miller's testimony would implicate Baty in the crime or that Miller would imply that Baty had a gun. Despite the effect of Miller's testimony on Baty's story, Taylor did not cross-examine him.

The jury found Baty guilty of armed robbery. At sentencing, after Taylor stated that he had nothing to say on behalf of his client and that his client also had nothing to say, the court imposed a life sentence. Baty, with new counsel, filed a motion for a new trial raising the issues of ineffective assistance of counsel and conflict of interest. The superior court denied the motion. An appeal raising the same issues also was unsuccessful. Baty v. State, 147 Ga.App. 277, 248 S.E.2d 503, 505-06 (1978), cert. denied, No. 56170 (Ga.S.Ct. November 7, 1978).

Having exhausted his state remedies, Baty filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C.A. § 2254, in federal district court. Baty first charged that he received ineffective assistance of counsel because counsel did not speak to him until the morning of trial, conducted no independent investigation, interviewed no defense witnesses, failed to file a motion for continuance, and decided against having Baty take the stand without talking with him. Second, he argued that, as a matter of law, he was denied effective representation because of a conflict of interest in counsel's representing both him and Miller.

The district court denied Baty's petition. Discussion of the case with Smith, the court concluded, allowed Taylor to be prepared adequately despite the absence of other preparation or of communication with Baty; being adequately prepared, it was not ineffective assistance for counsel not to have filed a motion for a continuance. Decisions on trial tactics, the district court observed, could have been motivated by sound tactical reasons that the court declined to second-guess. The conflict of interest claims the district court also held to be without merit. The court found no reason evident why Smith might have favored one defendant over another before trial. In particular, the court found that there was no option of pursuing a plea agreement for one client or the other in this case. After mentioning that Taylor assumed sole representation of Baty at trial, the court held that Taylor's past obligation toward Baty's co-defendant would not have adversely affected, and might even have enhanced, his representation of Baty. ⁵ Finally, the court noted that under the standard of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), Baty had to show an adverse effect of the conflict on his counsel's actions. There had, the court concluded, been no such effect.

Baty pursues on appeal his contentions that he was inadequately represented before trial, during trial, and at sentencing, and that a conflict of interest in the joint representation of him and his co-defendant rendered his trial fundamentally unfair.

II.

The standard by which to evaluate the effectiveness of counsel is well established. A defendant has a constitutional right to counsel reasonably likely to render and reasonably rendering effective assistance. See, e. g., United States v. Burroughs, 650 F.2d 595 (5th Cir. 1981); Washington v. Estelle, 648 F.2d 276 (5th Cir. 1981); Hill v. Wainwright, 617 F.2d 375 (5th Cir. 1980); United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978). Effective counsel need not, however, be errorless counsel, nor should counsel be judged ineffective solely by hindsight. See, e. g., Washington v. Estelle, supra ; Clark v. Blackburn, 619 F.2d 431 (5th Cir. 1980); Easter v. Estelle, 609 F.2d 756 (5th Cir. 1980). The appropriate methodology for determining whether there has been effective assistance is to examine the totality of circumstances in the entire record. See, e. g., Washington v. Estelle, supra ; Lovett v. Florida, 627 F.2d 706 (5th Cir. 1980); United States v. Gray, 565 F.2d 881 (5th Cir.), cert. denied, 435 U.S. 955, 98 S.Ct. 1587, 55 L.Ed.2d 807 (1978). ⁶

Inadequate preparation of counsel is one ground for finding a violation of the Sixth Amendment right to effective counsel, see Kemp v. Leggett, 635 F.2d 453 (5th Cir. 1981); Gaines v. Hopper, 575 F.2d 1147 (5th Cir. 1978). Considered in light of the above standard, the totality of circumstances in the entire record makes clear Taylor's inadequate preparation for trial and forces us to concede the merit of Baty's claim. ⁷

Taylor's minimal preparation for his client's trial must initially arouse our concern. As noted earlier, he conducted no investigation prior to trial, apparently did not read the transcript of the preliminary hearing, interviewed no witnesses despite conceding that some interviews might have aided his client, and communicated with his client only briefly before trial. Such minimal preparation might have sufficed had Taylor garnered the necessary background information from alternative sources. The record, however, belies any claim of sufficient information from any other sources. At the least, given Smith's self-professed conflict of interest, Taylor surely should have been skeptical about exclusive reliance on Smith as a source of information. The inadequacy of that reliance is strikingly illuminated by Taylor's ignorance of aspects of Miller's testimony that might critically have undercut his own client's defense. Further evidence of Taylor's inadequate preparation can be found in his silence through and after trial when given the opportunity to make an opening statement on Baty's behalf, to cross-examine Miller, or to speak at sentencing. Although, if considered individually, these instances of silence might perhaps be ascribed to tactical judgments into which the court need not inquire, when examined cumulatively and in the context of Taylor's scanty pretrial preparation, they reinforce our conclusion that Taylor had so little familiarity with his client's case as to violate Baty's right to effective counsel. ⁸

III.

For a conflict of interest to cause representation to fail Sixth Amendment standards, this Circuit requires that the conflict be actual, not speculative. An actual conflict exists if counsel's introduction of probative evidence or plausible arguments that would significantly benefit one defendant would damage the...