Cosgrove v. State

• Decision Date: 15 April 1981
• Docket Number: No. 63545,63545
• Citation: 304 N.W.2d 184
• Court: Iowa Supreme Court
• Parties: Dale Eugene COSGROVE, Appellant, v. STATE of Iowa, Appellee.

Page 184

304 N.W.2d 184

Dale Eugene COSGROVE, Appellant, v. STATE of Iowa, Appellee.

No. 63545.

Supreme Court of Iowa.

April 15, 1981.

Thomas M. Walter, of Barnes & Walter, Ottumwa, for appellant.

Thomas J. Miller, Atty. Gen., Shirley Ann Steffe, Asst. Atty. Gen., and Thomas F. Kintigh, Wapello County Atty., for appellee.

Considered en banc.

ALLBEE, Justice.

This is an appeal from an adverse judgment in a proceeding seeking postconviction relief under chapter 663A, The Code 1979. Petitioner Dale Eugene Cosgrove contends he was denied effective assistance of counsel, in contravention of the sixth and fourteenth amendments to the United States Constitution and article one, section ten of the Iowa Constitution, due to an alleged conflict of interest on the part of his court appointed attorney. The postconviction court found petitioner's claim to be without merit, and denied relief.

Petitioner was arrested on January 9, 1977 and charged on January 19 with robbery with aggravation, a violation of section 711.2, The Code 1975. The charge stemmed from the armed robbery by two men of a convenience store in Ottumwa. At petitioner's request, attorney Michael C. Vinyard was appointed by the court to represent him in connection with the alleged offense.

On January 9, 1977, Curtis Steele and James Walter were also arrested by Ottumwa police and charged with carrying concealed weapons after having been stopped in a pick-up truck which contained firearms. At this time, Walter first came to the attention of authorities as a suspect in the convenience store robbery. Walter attempted to arrange a "plea bargain" pursuant to which he would supply information concerning the robbery in return for a police recommendation that he be allowed to plead to a lesser charge. On January 20, Walter gave a statement to the Wapello County Attorney's office which implicated both himself and also petitioner in the convenience store robbery. In addition, the statement revealed that Steele's apartment had been utilized by the perpetrators both prior to and following the robbery; Walter, however, did not claim that Steele had been involved in the commission of the crime. The authorities at this point decided to question Steele about the robbery.

In the meantime, attorney Vinyard was contacted in behalf of Steele, and was present to represent him during the inquiry which took place on January 21. Although it was questionable that any evidence existed to link Steele to the robbery, it was agreed that in return for making a statement concerning his knowledge of the robbery he would not be charged in connection with that offense. Steele then gave a statement which further implicated petitioner in the robbery; Steele, however, maintained that he had no role in the crime. Several months later he pled guilty to a reduced charge with regard to the concealed weapons violation.

On January 24, petitioner entered a plea of guilty on Vinyard's advice, and was sentenced to twenty-five years at the men's reformatory. It appears that Vinyard's recommendation was based upon his knowledge of Walter's and Steele's contentions, coupled with an understanding that three other potential criminal charges would not be filed against petitioner in return for his plea of guilty.

Petitioner's claim for postconviction relief is predicated upon the assertion that Vinyard's actions in behalf of both Steele and petitioner constituted dual representation which resulted in a constitutionally impermissible conflict of interest. Following an evidentiary hearing, the postconviction court determined that no dual representation had taken place, and, even assuming such representation had occurred, petitioner had failed to demonstrate a substantial possibility that it resulted in a conflict of interest. See Jackson v. Auger, 239 N.W.2d 180, 183 (Iowa 1976).

Because petitioner has alleged a violation of a basic constitutional safeguard, his right to counsel, we are obliged to make an independent evaluation of the totality of the circumstances under which the postconviction court's ruling was made. Watts v. State, 257 N.W.2d 70, 71 (Iowa 1977); Jackson, 239 N.W.2d at 182.

This court has considered the problems raised by dual representation in criminal cases on several previous occasions. E. g., Jackson, 239 N.W.2d at 183; State v. Gatewood, 179 N.W.2d 520, 521-24 (Iowa 1970). "Dual representation" occurs "when persons jointly charged are represented by the same lawyer." Jackson, 239 N.W.2d at 183; Gatewood, 179 N.W.2d at 521. It does not automatically deny a defendant his right to effective assistance of counsel. Rather, "the burden is upon the defendant to demonstrate a substantial possibility that the situation of dual representation created a conflict between his interests and the interests of the other person or persons represented. Actual prejudice need not be shown." Jackson, 239 N.W.2d 183. ¹ In this case, however, Steele was not charged with the convenience store robbery at the time Vinyard represented him. Thus, because petitioner and Steele were not codefendants in the armed robbery prosecution, the postconviction court was correct in concluding Vinyard's actions could not be considered "dual representation" as that term has been defined by this court.

Although not constituting dual representation, Vinyard's conduct nonetheless raises the question of a potential conflict of interest. There are situations in which an attorney or single firm's representation of both a defendant and a party or witness adverse to that defendant may involve the potential for divided loyalty. See, e. g., Commonwealth v. Geraway, 364 Mass. 168, 170-76, 301 N.E.2d 814, 815-18 (1973); State v. Ray, Minn., 273 N.W. 652, 654-56 (1978); cf. Bizzett v. Brewer, 262 N.W.2d 273, 275-76 (Iowa 1978) (no denial of effective assistance where adverse witness requested representation by defendant's attorney in connection with same matter, but attorney promptly recommended other counsel upon inquiring and discovering that witness could potentially implicate his client). ²

We believe the potential conflict of interest inherent in the representation of both a defendant and an adverse party or witness is as substantial as in situations involving dual representation and should ordinarily militate against concurrent representation by counsel. See Bizzett, 262 N.W.2d at 275-76. Consequently, in evaluating claims of denial of effective assistance of counsel in situations in which a petitioner has established concurrent representation by a lawyer who has an attorney-client relationship with an adverse party or witness, we conclude that the standard employed in cases of dual representation should be applied.

Because this case involves the concurrent representation of petitioner and a material witness to the crime with which he was charged, petitioner must, therefore, demonstrate a substantial possibility that the representation created a conflict between his interests and those of Steele. Jackson, 239 N.W.2d at 183. With this principle in mind, we turn again to the circumstances underlying this appeal.

The alleged denial of effective assistance of counsel is based upon petitioner's assertion that Vinyard's representation of Steele resulted in the authorities' decision not to prosecute Steele for the armed robbery, and that by arranging this agreement for Steele, Vinyard provided incriminating evidence against petitioner in the form of the statement given by Steele. Our independent evaluation of the record convinces us that although Vinyard's concurrent representation created a potential conflict of interest, no prejudice resulted from his conduct under the circumstances of this particular case. The only defense tentatively advanced by petitioner prior to his pleading guilty was based upon an alibi purportedly supplied by two other men, Henry Keller and Bob Morris, Jr. By the time Steele informed the authorities what he had witnessed of petitioner's conduct on the night of the robbery, however, they had already obtained Walter's statement; that statement, in addition to identifying petitioner, implicated both Keller and Morris as look-outs in the commission of the offense. Vinyard was aware of the statement provided by Walter when he advised petitioner to enter a plea of guilty. Moreover, it is undisputed that the authorities agreed not to pursue three other potential criminal charges against petitioner in return for his guilty plea. Without question, this concession was a persuasive factor in the collective decision to enter a plea of guilty. Thus, we are satisfied that under the totality of the circumstances, petitioner's cause was not prejudicially affected by Vinyard's representation of Steele.

By our decision here we do not mean to encourage concurrent representation such as that engaged in by petitioner's original attorney; to the contrary, it should ordinarily be avoided, or terminated when discovered. Nonetheless, in this case, we have found no prejudice resulting from Vinyard's concurrent representation of petitioner and Steele. The judgment of the postconviction court is therefore affirmed.

AFFIRMED.

All Justices concur except McCORMICK, UHLENHOPP and LARSON, JJ., who dissent and McGIVERIN, J., takes no part.

McCORMICK, Justice (dissenting).

The constitutional standard regarding multiple representation which we delineated in Jackson v. Auger, 239 N.W.2d 180, 183 (Iowa 1976), was derived from Glasser v. United States, 315 U.S. 60, 71, 75-76, 62 S.Ct. 457, 465, 467-68, 86 L.Ed. 680, 700-02 (1942). In Jackson, we said The burden is upon the defendant to demonstrate a substantial...