Browning v. State

• Decision Date: 24 July 1992
• Docket Number: CR-91-611
• Citation: 607 So.2d 339
• Parties: William Pelham BROWNING v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 339

607 So.2d 339

William Pelham BROWNING v. STATE.

CR-91-611.

Court of Criminal Appeals of Alabama.

July 24, 1992.

Rehearing Denied Sept. 18, 1992.

Certiorari Denied Nov. 20, 1992

Alabama Supreme Court 1920012.

Michael A. Dasinger III, Robertsdale, for appellant.

James H. Evans, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, William Pelham Browning, appeals from the denial of his petition for post-conviction relief under Rule 32, A.R.Crim.P. The appellant was convicted for trafficking in marijuana and was sentenced to 12 years in prison. This court affirmed the appellant's conviction and the Alabama Supreme Court denied certiorari review. Browning v. State, 549 So.2d 548 (Ala.Cr.App.1989).

In his petition for post-conviction relief, the appellant contends that he was denied effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. He argues that one of the attorneys representing him had a conflict of interest, which, he argues, prevented the attorney from effectively representing him. The attorney was also a municipal judge. In his capacity as a judge, he signed a search warrant to search the appellant's premises in connection with the offenses charged in this case.

A petition for post-conviction relief under Rule 32, A.R.Crim.P., was the appellant's first opportunity to raise the issue of a conflict of interest of his trial counsel. The appellant was represented by trial counsel on direct appeal.

Conflict of interest cases commonly appear in the context of "joint representations," where an attorney is representing two clients charged with the same offense. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); State v. Serpas, 485 So.2d 999, 1001 (La.App.1986). However, conflicts of interest are not limited to that scenario and have been found in the following situations: where the attorney was called upon to cross-examination a witness he had previously represented, Commonwealth v. Goldman, 395 Mass. 495, 480 N.Ed.2d 1023 (1985), cert. denied, 474 U.S. 906, 106 S.Ct. 236, 88 L.Ed.2d 237 (1985), Serpas, supra; where the city prosecutor acted as defense counsel and city police officers were involved in the case, People v. Washington, 101 Ill.2d 104, 77 Ill.Dec. 770, 461 N.Ed.2d 393 (1984), cert. denied, 469 U.S. 1022, 105 S.Ct. 442, 83 L.Ed.2d 367 (1985); where the attorney faced the same charges for which his client was tried, Government of Virgin Islands v. Zepp, 748 F.2d 125 (3d Cir.1984); and where the judge appointed his son to represent the defendant in a guilty plea before him, State v. Browning, 475 So.2d 90 (La.App.1985), writ granted, 478 So.2d 1229 (La.1985), aff'd in part, rev'd in part, 483 So.2d 1008 (La.1986). See also Annot., Circumstances Giving Rise to Prejudicial Conflict of Interests Between Criminal Defendant and Defense Counsel--Federal Cases, 53 A.L.R.Fed. 140 (1981); Annot., Propriety and Prejudicial Effect of Counsel's Representing Defendant in Criminal Case Notwithstanding Counsel's Representation or Former Representation of Prosecution Witness, 27 A.L.R.3d 1431 (1969); Annot., What Constitutes Representation of Conflicting Interests Subjecting Attorney to Disciplinary Action, 17 A.L.R.3d 835 (1968); Annot., Constitutionality and Construction of Statute Prohibiting a Prosecuting Attorney From Engaging in the Private Practice of Law, 6 A.L.R.3d 562 (1966).

We hold that there was an actual conflict of interest in this case. We further find that defense counsel violated the Canons of Judicial Ethics. See Alabama Judicial Inquiry Commission Advisory Opinions 90-407 and 86-251 (part-time municipal judge is prohibited from acting as an attorney in any proceeding in which he has issued either arrest or search warrant). The Canons of Judicial Ethics, which were adopted by the State of Alabama in 1975, became effective on February 1, 1986, and state, in pertinent part, as follows:

"A part-time judge:

"....

"(2) Should not act as a lawyer in a proceeding in which he has served as a judge or in any other proceeding related thereto."

Section entitled "Compliance with the Canons of Judicial Ethics," following Canon 7, Canons of Judicial Ethics.

The Alabama Rules of Professional Conduct were also violated here. Rule 1.7(b) states:

"(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interest, unless:

"(1) the lawyer reasonably believes the representation will not be adversely affected; and

"(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved."

The comments to Rule 1.7, Alabama Rules of Professional Conduct, shed light on this matter. They state, in part:

"An impermissible conflict of interest may exist before representation is undertaken, in which event the representation should be declined....

"....

".... If the probity of a lawyer's own conduct in a transaction is in serious question, it may be difficult or impossible for the lawyer to give a client detached advice. A lawyer may not allow related business interests to affect representation...."

An accused is entitled to counsel. The Sixth Amendment to the United States Constitution states:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

(Emphasis added.)

"To be more than just a hollow right, our law requires that assistance of counsel be effective." State v. Franklin, 400 So.2d 616, 620 (La.1981). (Emphasis added.) Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984); Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). See also Valdez v. Winans, 738 F.2d 1087 (10th Cir.1984). "[T]here likewise exists a correlative right to representation that is free from any conflict of interest." United States v. Carpenter, 769 F.2d 258, 262-63 (5th Cir.1985).

"The assistance of counsel means assistance which entitles an accused to the undivided loyalty of his counsel and which prohibits the attorney from representing conflicting interests or undertaking the discharge of inconsistent obligations." People v. Molstad, 101 Ill.2d 128, 77 Ill.Dec. 775, 775, 461 N.E.2d 398, 398 (1984). "Counsel's undivided loyalty to the client is crucial to the integrity of the entire adversary system." Goldman, 480 N.Ed.2d at 1032.

"The Supreme Court has acknowledged that 'counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest,' which is 'perhaps the most basic of counsel's duties.' Strickland v. Washington, 466 U.S. 668, 690, 692, 104 S.Ct. 2052, 2065, 2067, 80 L.Ed.2d 674 (1984). The Court has recognized that the harm caused by representing conflicting interests is difficult to measure because the harm 'is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process.' Holloway v. Arkansas, 435 U.S. 475, 490, 98 S.Ct. 1173, 1182, 55 L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942)."

Duncan v. Alabama, 881 F.2d 1013, 1016 (11th Cir.1989) (emphasis in original). "Loyalty to a client is ... impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer's other responsibilities or interests." Comment, Rule 1.7, Alabama Rules of Professional Conduct. "The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results." Strickland, 466 U.S. at 685, 104 S.Ct. at 2063.

The United States Supreme Court in Strickland v. Washington, supra, articulated two criteria which must be satisfied to show that counsel's assistance has been ineffective. A defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result. See Strickland. For counsel to be so ineffective in a conflict of interest context that an accused has been denied his Sixth Amendment right to counsel, counsel must be hampered by an "actual conflict of interest." Ex parte Parker, 704 S.W.2d 40, 41 (Tex.Ct.App.1986); Baty v. Balkcom, 661 F.2d 391 (5th Cir.1981), cert. denied, 456 U.S. 1011, 102 S.Ct. 2307, 73 L.Ed.2d 1308 (1982).

What is an "actual" conflict of interest? An actual conflict is a real conflict. McConico v. Alabama, 919 F.2d 1543, 1546 (11th Cir.1990). "A possible, speculative or merely hypothetical conflict does not suffice." Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988). "An actual conflict of interest occurs when a defense attorney places himself in a situation 'inherently conducive to divided loyalties.' Castillo [v. Estelle, 504 F.2d 1243 (5th Cir.1974) ] at 1245." Zuck v. Alabama, 588 F.2d 436, 439 (5th Cir.), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979); United States v. Carpenter, 769 F.2d 258, 263 (5th Cir.1985). See also Smith v. White, 815 F.2d 1401 (11th Cir.1987), cert. denied, 484 U.S. 863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987). To prove that counsel was hampered by an actual conflict of interest, the appellant must show...