Dean v. Duckworth

• Decision Date: 19 February 1985
• Docket Number: 83-1765,Nos. 83-1664,s. 83-1664
• Citation: 748 F.2d 367
• Parties: Keith DEAN and Cornelius Harper, Petitioners-Appellees-Cross-Appellants, v. Jack DUCKWORTH, Respondent-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 367

748 F.2d 367

Keith DEAN and Cornelius Harper Petitioners-Appellees-Cross-Appellants, v. Jack DUCKWORTH, Respondent-Appellant-Cross-Appellee.

Nos. 83-1664, 83-1765.

United States Court of Appeals Seventh Circuit.

Argued Dec. 2, 1983.

Decided July 31, 1984.

Rehearing and Rehearing En Banc

Denied Oct. 23, 1984.

Certiorari Denied Feb. 19, 1985.

See 105 S.Ct. 1188.

Tony L. Axam, Franklin & Axam, Atlanta, Ga., for petitioners-appellees-cross-appellants.

David A. Arthur Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellant-cross-appellee.

Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and MAROVITZ, Senior District Judge. ^*

MAROVITZ, Senior District Judge.

This is an appeal from an order of the District Court, 559 F.Supp. 1331, granting Dean and Harper's petition for a writ of habeas corpus. The District Court held that petitioners received ineffective assistance of counsel caused by a conflict of interest on the part of their defense counsel. After a careful review of the record, we reverse.

During the early morning hours on September 13, 1977, Lannon Sulkko, a 29-year-old white woman, was abducted from her driveway at gunpoint by two black males. She was driven some distance from her home and then raped in the back seat of what turned out to be an automobile stolen during the evening hours of September 12, 1977. She was robbed of her money and then returned to an area near her house.

In the course of the subsequent police investigation Mrs. Sulkko was shown a number of mug shots as well as photographs from three local high school yearbooks. Outside of the yearbooks, she was shown 39 pictures, 34 of which were in black and white, the remaining five in color. Three of the five color photographs were Polaroid prints. Two of those prints were pictures of the defendants Keith Dean and Cornelius Harper. During the process of viewing the photographs Mrs. Sulkko selected several pictures of individuals who possessed characteristics or features similar to those of her attackers. Among the individuals so selected were Richard Pickett and Larry Harper, older brother of Cornelius Harper. The pictures of petitioners were the only ones that Mrs. Sulkko picked out as actually portraying the attackers. No identification line-up was ever conducted, apparently because the petitioners were juveniles. Mrs. Sulkko did view and identify the petitioners at a juvenile hearing. The petitioners were the only black males in the room at that time.

After their arrests, at the request of their defense attorney, the petitioners submitted to ex parte polygraph examinations. The results indicated that one of the petitioners knew something about the incident, but were inconclusive as to the other petitioner.

After a series of delays, mostly attributable to the defense, the petitioners were brought to trial on April 30, 1979. Both were represented by the same attorney. They were found guilty and sentenced to life imprisonment, which at that time was a mandatory sentence for the crime of kidnapping under Indiana law. Two weeks after the guilty verdict Richard Pickett and Larry Harper told defense counsel that they were the individuals involved in the incident. They admitted stealing the car, but claimed that Mrs. Sulkko consented, and even requested to have sex with them. Larry Harper and Richard Pickett then submitted to ex parte polygraph examinations, the results of which indicated that they were telling the truth when they stated that they had sexual intercourse with Lannon Sulkko, and that they were not telling the truth when they stated that it was not by force. A second ex parte polygraph examination of the petitioners was then conducted. The results of this examination indicated that they were telling the truth when they stated that they had not engaged in sexual intercourse with Mrs. Sulkko.

Based upon the above information, defense counsel filed a motion to correct errors. Attached to the motion was a transcript of Richard Pickett and Larry Harper's statements as given to defense counsel. At the hearing on the motion Larry Harper testified that he had engaged in sexual intercourse with Mrs. Sulkko, but refused to answer many questions on Fifth Amendment grounds. Richard Pickett refused to answer any questions. Larry Harper did state that he had told both petitioners about the incident the day after it happened. The trial judge denied the motion based upon the fact that the petitioners had failed to produce any "newly discovered evidence". Additionally, the judge noted that under Indiana law, the results of polygraph examinations are inadmissible absent a stipulation between the parties. Vacendak v. State, 264 Ind. 101, 340 N.E.2d 352 (1976). Petitioners then appealed directly to the Supreme Court of Indiana which unanimously affirmed the convictions. Dean v. State, 433 N.E.2d 1172 (Ind.1982). Having exhausted their available state court remedies, petitioners then filed a petition for habeas corpus relief in the District Court. Nine issues were raised in the petition. The District Court ruled that eight of the issues were "wholly without merit", and then addressed the lone issue of whether the joint representation of the petitioners at trial violated their right to the effective assistance of counsel. After reviewing the record, the District Court reached the conclusion that petitioners' counsel had an actual conflict of interest that adversely affected his performance and therefore issued the writ. Respondent Duckworth appeals from this decision while petitioners cross-appeal from the District Court's decision that the other eight issues raised in the petition were wholly without merit.

I

The Sixth Amendment to the United States Constitution guarantees to a defendant counsel that is unimpaired by a conflict of interest. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942). Of course, the mere fact that two or more defendants are jointly represented by a single attorney is not a per se violation of this constitutional guarantee. "To establish a constitutional violation, a defendant who raised no objection 'at trial must demonstrate that an actual conflict of interest adversely affected his lawyers' performance.' " Wilson v. Morris 24 F.2d 591, 593 (7th Cir.1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980)).

Neither petitioners nor their trial counsel objected to proceeding to trial without separate counsel. Nor did trial counsel ever indicate to the court that he foresaw the possibility of a conflict of interest. Thus, under Cuyler it was incumbent upon petitioners to establish the existence of an actual conflict of interest and that the conflict adversely affected the performance of their trial attorney.

In reaching the conclusion that a constitutional violation occurred the District Court did not specifically delineate the actual conflict of interest. Instead, relying upon United States ex rel. Sullivan v. Cuyler, 553 F.Supp. 1236, 1242 (E.D.Pa.1982), the Court stated that the concepts of actual conflict and adverse affect were merged and that an actual conflict adversely affecting counsel's performance appears on the face of the record. The basis for this statement is the District Court's conclusion that the petitioners did not in fact have a joint defense. At trial both petitioners testified that they spent the evening of September 12, 1977 together and among friends, but that each had already gone to his own respective home by the time that the kidnap, rape and robbery occurred. Thus, the District Court reasoned that because petitioners did not claim to have spent the entire night of September 12-13, 1977 together, their alibis ceased to be joint at precisely the most critical juncture in their defense.

While we agree that petitioners' alibi defense may have ceased to be joint at the time they left each other's company, we do not agree that this, by itself, establishes that an actual conflict of interest adversely affected their attorney's performance. Petitioners both testified that they spent the evening of September 12th together at a friend's house. Petitioners, the friend and the friend's mother all testified that they specifically remembered that day because Cornelius Harper had injured his lip in a fight on a school bus earlier that afternoon. This alibi, and with it the credibility of petitioners and their witnesses, was destroyed by the testimony of Harper's high school principal who stated that the injury to Harper's lip occurred not on September 12th but five days earlier. Petitioners now argue that this impeachment of Harper's alibi created prejudice in the minds of the jurors against Dean, and that defense counsel should have asked for an instruction that the principal's testimony be admitted against Harper only but was unable to do so because he was also representing Harper. This argument is totally without merit. Both Harper and Dean, as well as their supporting witnesses, testified that Harper injured his lip on September 12th. Dean actually described the fight in some detail. Thus the impeachment testimony was certainly admissible against both petitioners. Nowhere in our review of the record have we discovered any characteristics of a conflict of interest. We found no action or inaction by defense counsel that was favorable to one defendant at the expense of the other. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). All of the evidence presented by the prosecution was offered against both petitioners. There was nothing presented that would implicate one more than the other thereby putting defense counsel into the position of having to choose the interest of one over the other. We reject the conclusion inherent in the District Court's opinion that because petitioners did not have identical defenses they necessarily had conflicting defenses. In short, we find no evidence...