Burnside v. State, 93-415

• Decision Date: 07 June 1995
• Docket Number: No. 93-415,93-415
• Citation: 656 So.2d 241
• Parties: 20 Fla. L. Weekly D1366 Scott Allen BURNSIDE, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 241

656 So.2d 241

20 Fla. L. Weekly D1366

Scott Allen BURNSIDE, Appellant, v. STATE of Florida, Appellee.

No. 93-415.

District Court of Appeal of Florida,

Fifth District.

June 7, 1995.

William W. Carpenter, Longwood, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.

PER CURIAM.

Scott Allen Burnside appeals his convictions for criminal solicitation to commit murder in the first degree, conspiracy to commit murder in the first degree, accessory after the fact to murder in the first degree, and four counts of murder in the first degree. Burnside contends that the trial court deprived him of effective assistance of counsel by failing to rule on the state's pre-trial motion to disqualify Burnside's trial counsel ¹ for conflict of interest. At the state's request we relinquished jurisdiction so that the trial court could rule on the ineffective assistance of counsel issue after an evidentiary hearing. The trial court ruled adversely to Burnside on this issue. Burnside also faults the trial court for admitting hearsay statements of John Barrett, the person who carried out the murders. We find that the trial court erred on both issues, reverse the convictions and remand for a new trial.

The state presented evidence at trial that Doc Sanders, Jr., persuaded Burnside and Doc's son to arrange the murder of Doc's former wife. The motive was to prevent the former wife from prevailing in post-dissolution litigation. Burnside and Doc's son hired Barrett to commit the murder at the former wife's home. Barrett failed to kill the former wife although he had at least one opportunity to do so. Instead, he brutally murdered four men during the course of the day that he spent at the former wife's home. Immediately after the murders, Burnside furnished money to Barrett to flee to Ohio, where Barrett was apprehended.

Because the state was only interested in securing a death penalty, Burnside attempted to gain concessions by making an evidentiary proffer. As a result of that proffer, the prosecutor then listed Burnside as a potential witness in Doc Sanders' pending trial. Later, the prosecutor was advised by Sanders' attorneys that Burnside's trial counsel had attempted to discuss favorable testimony that Burnside could offer at Sanders' trial. Burnside's trial counsel allegedly asked Sanders' attorneys if Sanders could assist Burnside. Sanders' attorneys inferred from the statements made by Burnside's trial counsel that he might have intended to relay an offer that Burnside would give perjured testimony in exchange for Sanders' giving financial assistance to Burnside's family.

The prosecutor filed a complaint with the Florida Bar against Burnside's trial counsel, and conducted an investigation by securing sworn statements about the offer from Burnside's trial counsel. Admitting in his statement that he had conveyed Burnside's offer to Sanders' attorneys, Burnside's trial counsel said that, rather than making an offer, his intent was to demonstrate to Sanders' attorneys the "element" with which they were dealing. He also alluded to Burnside's propensity to lie and to manipulate, and stated that Burnside has got to "stop scamming everybody."

The prosecution then placed trial counsel on its witness list and moved to disqualify him as Burnside's counsel. The prosecutor told the trial court that if Burnside testified at trial, and if his testimony deviated materially from his proffer, the state would call Burnside's trial counsel as a rebuttal witness. Burnside opposed the motion to disqualify and prevailed. Nevertheless, the court refused to rule on Burnside's later motion to strike his trial counsel's name from the state's witness list, thus leaving open the possibility that trial counsel might be called by the state to testify against Burnside.

Burnside claims that he was denied effective assistance of counsel because the possibility that his trial counsel would have to testify against him created a conflict of interest between them. That is, if Burnside testified, trial counsel might have to testify, and, if trial counsel testified, he could be open to charges of witness tampering. The only way trial counsel could avoid this liability, Burnside argues, was to advise Burnside not to testify.

The right to counsel under the Sixth and Fourteenth Amendments to the Constitution of the United States is the right to effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (Fla.1984), a case involving allegedly deficient performance by counsel--as opposed to a conflict of interest--the Court held that a defendant seeking to reverse a conviction based on ineffective assistance must meet a two part test. First, he must show that counsel's performance was deficient--that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed under the Sixth Amendment. Id., 466 U.S. at 687, 104 S.Ct. at 2064. Second, the defendant must show that the deficient performance prejudiced the defense--that counsel's errors were so serious as to deprive the defendant of a fair trial. Id.

The second prong, prejudice, is presumed in cases involving the actual or constructive denial of assistance. Id., 466 U.S. at 692, 104 S.Ct. at 2067. Conflict of interest cases warrant a similar, though more limited, presumption of prejudice. Although it is a "fairly rigid rule of presumed prejudice," it is "not quite the per se rule of prejudice" that is applicable in denial of counsel cases. Id. In conflict of interest cases prejudice is presumed "only if the defendant demonstrates that counsel 'actively represented conflicting interests' and that 'an actual conflict of interest adversely affected his lawyer's performance' ". Id., quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 350, 100 S.Ct. 1708, 1718, 1719, 64 L.Ed.2d 333 (1980).

In Cuyler the alleged conflict arose out of the representation of three defendants by the same attorneys. In such a situation, an actual conflict occurs if, during the course of the representation, the defendants' interests diverge with respect to a material factual or legal issue or to a course of action. Id., 446 U.S. at 355 n. 3, 100 S.Ct. at 1721 n. 3. (Marshall, J., concurring in part).

The instant case concerns not the divergent interests of co-defendants, but the alleged divergence of Burnside's interests and those of trial counsel. "A situation in which the attorney's own interests diverge from those of the client presents the same core problem presented in the multiple representation cases: the attorney's fealty to the client is compromised." U.S. v. Fulton, 5 F.3d 605 (2d Cir.1993). "Therefore, courts have held that the presumption of prejudice set forth...