Burns v. State, A05A0084.

• Decision Date: 28 July 2005
• Docket Number: No. A05A0499.,No. A05A0084.,A05A0084.,A05A0499.
• Citation: 274 Ga. App. 687,618 S.E.2d 600
• Parties: BURNS v. The STATE. Griffin v. The State.
• Court: Georgia Court of Appeals

274 Ga. App. 687

Page 600

618 S.E.2d 600

BURNS v. The STATE.

Griffin v. The State.

No. A05A0084.

No. A05A0499.

Court of Appeals of Georgia.

June 24, 2005.

Reconsideration Denied July 28, 2005.

Wystan B. Getz, for appellant (case no. A05A0084).

Mathis & Williams, Tony E. Mathis, Decatur, for appellant (case no. A05A0499).

Jeffrey H. Brickman, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

JOHNSON, Presiding Judge.

In separate appeals from their criminal convictions, Derick Burns and Stanley Griffin challenge the trial court's refusal to allow Burns' attorney to withdraw from representing Burns based on a claim of conflict of interest, when Burns and Griffin were being represented in a joint trial by attorneys from the same public defender's office. While the better practice would have been to appoint outside counsel for one of the defendants upon counsel's request, we hold that, under the circumstances presented here, the trial court did not commit reversible error in denying Burns' request. Therefore, the convictions in both cases are affirmed.

Burns was charged with burglary, theft by receiving, and possession of methamphetamine. Griffin, his co-defendant, was charged with burglary, theft by receiving, possession of tools for the commission of crime, and obstruction of an officer. In their first joint trial, Burns was represented by Ken Driggs and Homer Robinson, both of whom were employed by the DeKalb County Public Defender's Office. Griffin was represented by William Hankins, also of the DeKalb County Public Defender's Office. During opening statements, Hankins told the jury not to consider "the bad things about Mr. Burns ... that don't apply to [Griffin] ... Frankly, we don't care if you find Mr. Burns guilty or not." The defendants did not testify at trial. During closing, Griffin's attorney told the jury that it could "[f]ind [Burns] guilty of all three charges that he faces.... That's fine." The jury found Burns guilty of possession of methamphetamine, and Griffin guilty of obstruction of an officer. The jury was unable to reach a verdict as to the charges of burglary, theft by receiving and possession of tools for the commission of crime, so a mistrial was declared as to those charges.

A month later, a second joint trial was held on the remaining charges. Griffin was being represented again by Hankins, and Burns was being represented by Christopher Latham, another attorney from the DeKalb County Public Defender's office. After the calendar was called but before voir dire began, the trial court entertained pre-trial motions. Latham, who had not been involved in the first trial, informed the court that after becoming acquainted with the case, he realized that a conflict of interest existed in that he and Hankins were employed by the same office. Latham stated that at the prior trial each of the defense attorneys had pointed to the other defendant as the guilty person, and that they would likely do the same at this trial. When asked his position on the matter, Hankins said he was not raising the conflict issue because the attorneys had not shared information and he had not cross-examined the co-defendant at the earlier trial. The trial court stated that Latham had not shown a conflict of interest. The judge noted that the matter apparently had not been raised at the first trial because normally when the public defender is representing more than one defendant in a case, it is his practice to appoint private counsel to represent one of the defendants. The court inferred that the attorneys in the prior case must not have perceived any conflict of interest, because if they had, the court would have appointed private counsel immediately. The court denied counsel's motion to withdraw, then proceeded to trial.

During opening statements, counsel for Burns stated that "the state will attempt to link [Burns] to Mr. Griffin. They are going to do that because, as you see from the evidence, all of the evidence in this case points to Mr. Griffin. Mr. Griffin, as you will hear was in fact seen going inside of the house." Counsel for Burns told the jury to convict Griffin and then began to distinguish the facts against Griffin and Burns. He went on to state that the two men were not on the same team. Neither defendant testified at trial.

In closing argument, Griffin's attorney stated that none of the witnesses recognized Griffin, and that Burns was the one who spoke to the neighbors and was seen standing on the front porch of the burglarized home and going into and out of the burglarized home. He added that "[t]hey saw Mr. Burns in front of the house. That's who they saw," that "[n]obody has any doubt about Mr. Burns, and that they recognized him in court." Griffin's attorney posited: "could [Griffin] have been part of helping Mr. Burns burglarize this house?"

When Burns' attorney made his closing statement, he pointed to the lack of evidence of Burns' guilt, but said nothing which implicated Griffin.

This time, the jury found both men guilty of burglary and theft by receiving. The jury also found Griffin guilty of possession of tools for the commission of crime. The trial court entered judgments of conviction on the verdicts.

Case No. A05A0084

1. Burns contends that he was denied effective assistance of counsel and that the trial court erred in denying his trial attorney's request to withdraw prior to the second trial. Burns argues that attorneys employed by the same firm operate as a single entity, and that where two attorneys from the same firm represent co-defendants with conflicting interests, a conflict of interest results. He urges that where, as here, defense counsel objected to the joint representation at trial but the trial court denied counsel's request to withdraw, reversal is automatic. Under the facts of this case however, reversal is not required.

The assistance of counsel that is guaranteed by the Sixth Amendment contemplates that the assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.¹ Most courts have held that an attorney's request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interest, should be granted.² An attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.³ Whenever a trial court improperly requires joint representation over timely objection, reversal is automatic.⁴ Burns has not demonstrated that this automatic reversal rule applies in his case.

Burns does not point to any authority, and we have found none, in which the courts have treated conflict cases involving two attorneys from the same firm separately representing two co-defendants in the same manner as they treat cases involving one attorney representing multiple defendants. "Joint" or "dual" representation generally refers to those situations in which one attorney represents more than one defendant in a case.⁵ The difference is significant, because the potential for an actual conflict of interest is greater in those cases in which multiple co-defendants are represented by a single attorney than when co-defendants are represented by different attorneys — even where the attorneys work in the same public defender's office.⁶ Joint representation by the same office is not as potentially dangerous as joint representation by a single attorney.⁷ Where two attorneys work in the same office, the duty of loyalty runs only to each attorney's client; the attorney is in no way being asked to serve two masters.⁸ Each attorney is representing a different defendant, and he may or may not share any information or files related to the cases. In this case, counsel for Burns' co-defendant reported to the trial court that the attorneys had not shared information, that there had been no cross-examination of co-defendants, and that he perceived no conflict of interest.

The Supreme Court of Georgia has held that, unlike in the private sector where no partner or associate of a firm may represent a client with whom any of the other attorneys have a conflict of interest, an entire government office is not necessarily disqualified from a case due to the conflict of an individual attorney.⁹ Instead, in cases involving government attorneys, we look to the individual attorney and consider whether there has been any direct or indirect participation in the case, or any discussion between the associates concerning matters relevant to the case.¹⁰ For these reasons, the cases upon which Burns relies as providing for automatic reversal where the court required joint representation over objection are distinguishable from the instant cases.

We hold that, in the absence of any authority providing that reversal based on a conflict of interest is automatic in a case such as this (where two attorneys from the same public defender's office separately represent co-defendants in noncapital cases), Burns is required to show what an appellant is normally required to show when alleging that his counsel was ineffective due to a conflict of interest: he must prove that his counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance.¹¹ By actual conflict, the law means more than the bare possibility that a conflict may have developed.¹² The conflict must be palpable and have a substantial basis in fact.¹³ The representation must have deprived either defendant of the undivided loyalty of counsel, i.e., counsel slighted one defendant to favor the other.¹⁴ The premise of a defendant's claim that he was denied conflict-free assistance because of joint representation must be that his lawyer would have done something differently if there was no...