Ciarelli v. State

• Decision Date: 09 June 1969
• Docket Number: No. 54127,No. 1,54127,1
• Citation: 441 S.W.2d 695
• Parties: James A. CIARELLI, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 695

441 S.W.2d 695

James A. CIARELLI, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 54127.

Supreme Court of Missouri, Division No. 1.

June 9, 1969.

Robert G. Oberlander, Kuraner, Oberlander, Lamkin & Dingman, Kansas City, for movant-appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.

WELBORN, Commissioner.

Appeal from denial, after hearing, of relief under Criminal Rule 27.26, V.A.M.R., from 10-year sentence for receiving stolen property, valued at over $50. The conviction was affirmed on a previous direct appeal. State v. Ciarelli, Mo.Sup., 416 S.W.2d 944.

The first of the two points presented on this appeal is that appellant was denied the effective assistance of counsel upon his original trial because his attorney, by acting also as attorney for a prosecution witness, was representing conflicting interests.

The charge against Ciarelli arose out of a burglary and theft at the Tomahawk Hills Country Club in Johnson County, Kansas. Victor Osborne and Jerry Slavens testified that they entered the clubhouse at Tomahawk on January 8, 1965, and took a quantity of golf equipment and clothing which they brought to the Country Club Market in Kansas City. There they offered to sell the loot to Junior Bradley. Bradley called Ciarelli to the market and in Ciarelli's presence, Bradley paid Osborne and Slavens for the merchandise. Ciarelli's arrest on the charge for which he was convicted resulted from a raid by Federal Alcohol and Tobacco Tax Unit investigators of an after-hours place operated by Ciarelli. Some of the stolen golf clubs were discovered in the course of the raid.

Ciarelli originally employed an attorney who was to represent him and Bradley with whom he was jointly indicted. Apparently because of a question of representation of conflicting interests, that attorney withdrew as Ciarelli's attorney. Ciarelli then employed Mr. Joe Harrington. Harrington, an associate of the firm of Quinn, Peebles and Hickman, became ill. Mr. Robert Hickman of the firm took over the Ciarelli case about five days or a week before Ciarelli's trial.

Harrington also represented Victor Osborne, who was under a series of charges in Jackson County, Missouri. Hickman assumed, in part, Harrington's duties to Osborne when Harrington became ill. He was present at preliminary hearings on two charges against Osborne. Apparently other members of the firm also assisted in handling Osborne's difficulties. At the time of Ciarelli's trial, Osborne was awaiting sentencing on six felony charges in Jackson County to which he had pleaded guilty. On the trial of Ciarelli, Osborne testified that Hickman was not present when he pleaded guilty; that another representative of the firm was present at that time. Osborne testified at that time that he had talked to Hickman as his attorney.

The trial court's findings on this issue were stated as follows:

'As far as the double representation that has been referred to, it does appear that Harrington had represented Osborne. I am not clear myself at the moment as to whether Robert Hickman personally ever represented Osborne or not, but at least that office had represented Osborne. Certainly there was no point raised at the trial as to any conflict of interest, and it's not apparent in light of the subsequent events that there was any conflict of interest. It would appear to the contrary, if there was anything going on it would be that Osborne would be more likely to favor his own attorneys in connection with another matter.'

In State v. Crockett and Edwards, Mo.Sup., 419 S.W.2d 22, Edwards had been represented on a criminal trial by a court-appointed attorney who was at the time a special assistant attorney general. Holding that this required setting aside of the conviction, the court stated (419 S.W.2d 28):

'In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, it was held that the federal constitution guarantees to persons accused of a crime in the state courts the right to representation by counsel. It has been ruled in numerous federal cases that a defendant in a criminal trial is denied his constitutional right to counsel if his attorney represents conflicting interests without his knowledge and assent. See, for example, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Tucker v. United States, 9 Cir., 235 F.2d 238; Goodson v. Peyton, 4 Cir., 351 F.2d 905; Craig v. United States, 6 Cir., 217 F.2d 355; MacKenna v. Ellis, 5 Cir., 280 F.2d 592; United States ex rel. Miller v. Myers, D.C., 253 F.Supp. 55. 'A showing of actual prejudice is not required; all that is necessary is a showing of a conflict.' United States ex rel. Miller v. Myers, supra at p. 57. As was said in Glasser v. United States, the right 'is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' See also Craig v. United States, supra, and Goodson v. Peyton, supra. In United States ex rel. Miller v. Myers, supra, it was said this way: 'His right to counsel under the Constitution is more than a formality, and to allow him to be represented by an attorney with * * * conflicting interests * * * without his knowledgeable consent is little better than allowing him no lawyer at all * * *.''

There can be no doubt that, insofar as this problem is concerned, the fact that an attorney is of the defendant's own choosing is of no significance, absent knowledgeable consent of the accused. United States ex rel. Miller v. Myers, D.C., 253 F.Supp. 55; Porter v. United States, 5 Cir., 298 F.2d 461, 463(2).

An attorney who represents both the defendant and a prosecution witness in the case against the defendant is representing conflicting interests. Porter v. United States, supra; United States ex rel. Miller v. Myers, supra; Hayman v. United States, 9 Cir., 187 F.2d 456, vacated on other grounds, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232; Tucker v. United States, 9 Cir., 235 F.2d 238; United States ex rel. Williamson v. LaVallee, D.C., 282 F.Supp. 968. There is, however, no deprivation of constitutional right if the defendant knowingly consents to being represented by an attorney who also represents a prosecution witness. Hayman v. United States, supra; United States ex rel. Miller v. Myers, supra.

The evidence here was sufficient to show representation by Hickman of both appellant and Osborne. The trial court's finding otherwise is rejected. However, if the trial court's conclusion was correct for other reasons, it should be sustained.

The trial court made no finding on Ciarelli's knowledge of Hickman's dual role. However, the evidence points to the existence of such knowledge. Hickman testified as follows:

'Q Did you ever prior to or during the trial tell Mr. Ciarelli that you also represented Vic Osborne and you thought there was a conflict of interest?

'A I believe I did, I am not sure. I don't know if I did or not, to tell you the truth. It's been quite a while.'

Ciarelli's testimony was:

'Q You didn't know that Hickman while he was representing you was also representing resenting Vic Osborne on a number of charges, did you?

'A Well, I think he said--I think my lawyer Hickman said something about that he did.'

Although the testimony of Hickman was equivocal, the testimony of Ciarelli is sufficient to dispel any doubt as to his knowledge of Hickman's position. Having elected to proceed with such knowledge, he is not now entitled to relief on this ground. See Bowles v. Texas, 5 Cir., 366 F.2d 734; Juvera v. United States, 9 Cir., 378 F.2d 433.

The cases relied upon by appellant all involved situations in which it had been either alleged or shown that the dual representation was without the knowledge of the defendant. State v. Crockett and Edwards, supra, Porter v. United States, supra, Hayman v. United States, supra, and United States ex rel. Miller v. Myers, supra, all recognize that the situation must be beyond the knowledge of the accused. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, also relied upon by appellant, involved an entirely different situation. There, the court, over the objection of one defendant, appointed such defendant's attorney to represent a codefendant. That situation presents an entirely different problem.

The trial court found that...