Davis v. State

• Decision Date: 12 September 1973
• Docket Number: 48237,Nos. 48236,2,Nos. 1,3,s. 48236,s. 1
• Citation: 129 Ga.App. 796,201 S.E.2d 345
• Parties: Arlie F. DAVIS v. The STATE. Clifford L. WOOD, Jr. v. The STATE
• Court: Georgia Court of Appeals

Page 345

201 S.E.2d 345

129 Ga.App. 796

Arlie F. DAVIS v. The STATE.

Clifford L. WOOD, Jr. v. The STATE.

Nos. 48236, 48237.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Sept. 12, 1973.

Rehearing Denied Oct. 5, 1973.

Syllabus by the Court

1. Appointment by the court of one attorney to represent both defendants jointly indicted and jointly tried for a felonly less than capital, did not violate the rights of either defendant to the effective assistance of counsel under the Sixth and Fourteenth Amendments in the absence of some genuine inconsistency between the defenses or the interests of defendants.

2. The fact that appellant was jointly indicted and tried with a codefendant who was additionally alleged in the indictment to have been convicted of prior similar offenses, where the indictment was read to the jury during the guilt determination phase of the trial, and where both defendants were represented by the same attorney, was not in itself prejudicial to appellant to an extent requiring reversal of his conviction.

Following their Fulton Superior Court convictions for motor vehicle theft, appellants Davis and Wood separately appeal the denial of their individual motions for new trial. Because of the similarity of facts and issues, we will consider the appeals together.

On July 2, 1972 and automobile belonging to Willie Lee Glenn was stolen from a downtown parking lot in Atlanta sometime after 5 p.m. Shortly after midnight on July 3, State Trooper Hightower saw two men standing outside a parked automobile later identified as the stolen vehicle. The taller man appeared to be throwing papers out of the car onto the ground. Hightower stopped; the taller man walked toward him saying they were having car trouble and planned to walk to the nearest service station; Hightower left.

Shortly thereafter, he saw this same auto being driven in an erratic manner down the wrong side of the road. He stopped the car and observed that the occupants of the car were the same two men seen earlier. The driver was the taller of the two men and was later identified as Wood. The trooper asked him to step to the rear of the vehicle, and observed that he smelled of alcohol and was unsteady on his feet. The driver explained his lack of identification by saying he had been robbed earlier that evening and said his name was Bobby Brooks. The trooper placed Wood in his patrol car and went to speak with the passenger, later identified as Davis, who appeared to be quite drunk. At this time, Hightower observed that the car was running, it had no key, its dashboard wires were hanging down and it had been hotwired. The trooper asked if the passenger knew his driver's name, and was told it was Clifford Leon Wood. Wood, confronted with this, admitted his identity and admitted that he had no driver's license. He had no keys to the car and said he had lost them. He claimed that the vehicle belonged to a friend of Davis. Hightower returned to Davis, who was still seated in the stolen auto, who said the vehicle belonged to Wood's sister. Hightower placed both under arrest and turned them over to Atlanta police officers. He returned to the place where he had earlier seen the two, and located the papers Wood had thrown out of the car, which turned out to be a box of checks with Glenn's name on them, together with other papers and documents.

Detective Gundlach subsequently interviewed Davis in the city jail, and Wood at the police ward of Grady Hospital. Each man was fully advised of his rights, waived counsel, and volunteered statements. Davis stated that Wood had picked him up in the car from a bar and they had gone to drink wine and that he, Davis, had not thought it peculiar that the car had been straight-wired. Wood stated that he and Davis had been downtown at a bar, and a third party had picked them up and driven them around, they had had some drinks, and then this unidentified third person had gotten out of the car; and that Wood hadn't thought it peculiar that the car had been straight-wired. Both Davis and Wood denied having thrown any papers from the car.

Davis and Wood were jointly indicted and tried for auto theft, and Davis was additionally charged as a multiple offender, the indictment alleging as to him four prior convictions for motor vehicle theft. Both defendants being indigent, they were jointly represented by the office of the public defender. At trial, Trooper Hightower testified to the statements made by the defendants at the time he stopped their car and questioned them, and Detective Gundlach testified to their statements after they waived counsel. The only defense was the unsworn statement made by each defendant.

Wood's unsworn statement was that he and Davis had been drinking for a considerable time at their hotel when an unidentified acquaintance of Wood from a labor pool came by and suggested they all go out in the acquaintance's automobile for more drinks. It was then Sunday afternoon. The acquaintance later got out at his girl friend's house, telling Wood and Davis just to leave the car at Kelly's Labor Pool where he would pick it up the next morning. Wood and Davis drive around for one or two more hours, having more drinks, until they were arrested.

Davis then gave his unsworn statement, in which he affirmed that he and Wood were picked up by a third man who subsequently got out of the car. He stated generally that he was too 'drunk' to know what had happened but he denied that he had stolen the car.

The jury found both men guilty of auto theft. On the second, penalty phase of the trial, the state introduced evidence of additional prior criminal convictions of Davis, and evidence of prior convictions of Wood for possession of burglary tools, two counts of burglary, receiving stolen goods, two counts of simple battery, public drunkenness, and violation of the drug act. The jury fixed Wood's sentence at seven years and Davis' at 15 years in the penitentiary.

Each defendant subsequently moved for a new trial. Both defendants urged that their Sixth and Fourteenth Amendment rights were abridged by their representation by a single attorney when their interests were in conflict. Davis claimed as an additional ground for new trial that the evidence was insufficient to convict him. Davis also asserted a third ground which has been abandoned on appeal and will not be considered herein. Both defendants' motions were overruled, and these appeals followed.

Glenn, Zell, Atlanta, for appellants.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Morris H. Rosenberg Jack E. Mallard, Atlanta, for appellee.

HALL, Presiding Judge.

On the question whether both appellants were properly represented by the same attorney, Wood urges that the same attorney could not represent them free from conflicts of duty because, first, the two did not tell the same story in their statements to Hightower and Gundlach, and each should have been free to pursue his own defense; and, second, the indictment recited four prior convictions of Davis, for the same type crime charged, which served to prejudice Wood in the eyes of the jury. Davis urges essentially Wood's first point, with the added assertion that counsel should have known that Wood was the one to blame.

1. A defendant's right to the effective assistance of counsel under the Sixth Amendment is violated where over his objection he is represented by an attorney also charged with the representation of a codefendant whose interests are inconsistent with his. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. See Annot., Two or More Accused-Separate Counsel, 34 A.L.R.3d 470 (1972 Supp.). However there is no error in appointing only one attorney to represent two or more accused where there is no conflict in their interests or in their defenses. Fambles v. State, 97 Ga. 625, 25 S.E. 365. Moreover, to justify separate counsel, the conflict may not be merely theoretical or speculative, but must have some substantial basis in fact. United States v. Williams, 429 F.2d 158 (8th Cir. 1970); United States v. Lovano, 420 F.2d 769 (2d Cir. 1970).

The decided cases hold that conflict sufficient to require as a constitutional mandate that each defendant have separate counsel occurs where one accused's defense is that the other defendant and not he committed the crime; or that his degree of culpability of less than that of the other; or that in mitigation of his punishment the jury should consider that his codefendant was a bad influence on him. Perhaps other sufficient circumstances may be hypothesized as well; but the connecting theme in the situations in which a Sixth Amendment violation occurs is that counsel cannot in good faith vigorously pursue the defense of one defendant because it will bring him into conflict with his equivalent duty to avoid damaging the other. However, the test is not whether the defenses are 'entirely consistent.' Instead, the court should inquire, 'Did the representation deprive either or both of the defendants of the undivided loyalty of counsel? Did counsel have to, or did he in fact, 'slight the defense of one defendant for that of another'?' Sanchez v. Nelson, 446 F.2d 849, 850 (9th Cir. 1971). Minor inconsistencies in the accounts related by codefendants to counsel, as their individual versions of what actually occurred, will not necessarily create a conflict. See, Roberts v. United States, 348 F.Supp. 563, 566 (E.D.Mo.1972).

Applying these principles to the appeals here, we consider first whether the defendants had inconsistent defenses. Their unsworn statements at trial were entirely consistent with each other, both defendants claiming the car was loaned to them by an unidentified third man. That leaves their statements to Hightower and to Gundlach for consideration.

Their statements to Hightower, though inconsistent with each other, do not present their counsel with a conflict in presenting their defenses because both statements were...