Dean v. Duckworth

• Decision Date: 28 March 1983
• Docket Number: No. S 82-340.,S 82-340.
• Citation: 559 F. Supp. 1331
• Parties: Keith DEAN and Cornelius Harper, Petitioners, v. Jack DUCKWORTH, Warden Indiana State Prison, Respondent.
• Court: U.S. District Court — Northern District of Indiana

559 F. Supp. 1331

Keith DEAN and Cornelius Harper, Petitioners, v. Jack DUCKWORTH, Warden Indiana State Prison, Respondent.

No. S 82-340.

United States District Court, N.D. Indiana, South Bend Division.

March 28, 1983.

Tony L. Axam, Atlanta, Ga., Thomas H. Singer, South Bend, Ind., for petitioners.

Linley E. Pearson, Atty. Gen. of Ind., Indianapolis, Ind., for respondent.

MEMORANDUM AND ORDER

SHARP, Chief Judge.

This case is presently before the Court on a joint petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The two petitioners, Keith Dean and Cornelius Harper, were tried and convicted in a state court jury trial on charges of kidnap, rape and robbery, for which they each received sentences of life imprisonment. Their convictions were unanimously affirmed on direct appeal by the Supreme Court of Indiana. Dean v. State, Ind., 433 N.E.2d 1172 (1982). After having exhausted their state court remedies per Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981) and Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), petitioners filed this application seeking federal habeas relief. The transcript of state court proceedings has been filed with this Court and carefully reviewed pursuant to Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Further, and after a thorough briefing by both sides of the issues raised in this case, a final hearing with oral argument was held before this Court on February 23, 1983.

Petitioners raise nine issues in their application for the issuance of a writ of habeas corpus. However, because one of the questions presented is dispositive of the entire petition, while the remaining eight issues argued by petitioners are wholly without merit, this Court will address but a single question: whether the joint representation of the two petitioners at trial violated their right to the effective assistance of counsel.

In the early morning hours of September 13, 1977, a twenty-nine year old white woman was abducted at gunpoint from her home by two black males who raped and robbed her. During the course of the subsequent police investigation, the prosecutrix was shown a number of mug shots as well as photographs from a local school yearbook. In particular, she was shown some thirty-nine pictures, thirty-four in black and white, the remaining five in color. Of the five color photographs, three were Polaroid prints, two of which were of the petitioners. The prosecutrix selected several pictures of individuals who resembled her assailants. Among those so selected, two were of Richard Pickett and Larry Harper, elder brother of petitioner Cornelius Harper. The prosecutrix declared, however, that the two Polaroid snapshots of the petitioners most closely resembled her attackers. After making that identification, the prosecutrix was ushered into another room where she saw and further identified the petitioners as the individuals who had assaulted her on September 13, 1977.

Sometime between their arrest in November 1977, and their trial in April 1979, the two petitioners submitted to ex parte polygraph examinations at defense counsel's request. The results of those tests indicated that one of the petitioners, Cornelius Harper, knew nothing of the events surrounding the night of September 12-13, 1977, while the other petitioner, Keith Dean, might have. Despite the inconsistency of the results, nothing further was done along those lines by defense counsel until after the trial.

After a series of delays, the petitioners were finally brought to trial on April 30, 1979, and were found guilty on May 4, 1979. Immediately after the convictions of the two petitioners, Richard Pickett and Larry Harper came forward and confessed that they, and not the petitioners, had committed the crimes in question. An ex parte polygraph examination of Messrs. Pickett and Harper, as well as of the petitioners, was conducted. The examiners concluded that there was no indication of deception when the petitioners responded negatively, and Pickett and the elder Harper responded affirmatively, to the question whether they had engaged in sexual intercourse with the prosecutrix.

Armed with the above, the petitioners sought to have the verdict set aside in their post-trial motion to correct errors. Their motion was denied and, as noted above, their convictions were affirmed on appeal.

Petitioners contend that a conflict of interest existed in their joint representation at trial by a single attorney, thereby infringing on their Sixth Amendment right to counsel. Respondent, on the other hand, argues that no such violation of their right to counsel occurred, and, in the alternative, that if such a conflict did in fact occur it was waived beforehand by the petitioners.

The Sixth Amendment's guarantee of a right to counsel necessarily includes the right to the effective assistance of counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Where a single attorney represents more than one defendant at trial, the requirement that counsel be effective means that counsel must be free from conflicting interests. Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). The mere possibility of a conflict of interest arising at trial presents no Sixth Amendment violation and imposes no duty on the trial court to inquire into the circumstances of multiple representation. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). However, the failure to appoint separate counsel, or at least to take steps to insure that no conflict exists, is reversible error where there is a timely objection made by counsel or defendants, Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), or where the possibility of conflict becomes apparent on the face of the record. Wood v. Georgia, supra. See also Wilson v. Morris, 699 F.2d 926 (7th Cir.1983); United States ex rel. Williams v. Franzen, 687 F.2d 944 (7th Cir. 1982); Davis v. Franzen, 671 F.2d 1056 (7th Cir.1982).¹

In the present case, neither the petitioners nor their defense counsel voiced any objection to proceeding to trial without benefit of separate counsel. Thus, "(i)n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. at 1718, quoted in Ross v. Heyne, 638 F.2d 979, 983 (7th Cir. 1980). In line with the above, petitioners must demonstrate (1) the existence of an actual conflict of interest, and (2) that said conflict adversely affected the performance of trial counsel. Id.

At the February 23, 1983 hearing, counsel for petitioners very ably advanced the argument that a genuine conflict of interest existed between the petitioners and, a fortiori, between them and their defense counsel, because their so-called "joint defense" was not in fact joint at all. The alibi proffered by the petitioners at trial was that both Keith Dean and Cornelius Harper had spent the evening of September 12, 1977 together and in the presence of others during the time that the automobile used by the assailants was stolen. However, because the 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, viz., accounting for their whereabouts at the time of the kidnap, rape and robbery of Ms. Sulkko, the prosecutrix.

Respondent, on the other hand, argues that the petitioners' alibi defense was a truly joint defense because the petitioners adamantly maintained having spent the evening of September 12, 1977 together and buttressed that claim by their mutual recollections of an injury to Keith Dean's lip occurring on that same day. Later, respondent argues, when that defense was demolished by the testimony of petitioner Dean's school principal that the injury to Mr. Dean's lip had occurred not on September 12, 1977, but rather five days earlier, both the alibi and credibility of each petitioner were destroyed thereby.

A careful review of the record does not support respondent's contention that the alibi presented a joint defense. Without passing on the question whether the timing of the theft of the station wagon used in the assault is central to the petitioners' alibi defense, the fact remains that no joint defense, alibi or otherwise, existed as to what occurred in the critical morning hours of September 13, 1977. Thus, with the destruction of the joint alibi defense relating to the evening hours of September 12, 1977, it became immediately apparent that aside from their mutual desire to be acquitted, the interests of the petitioners were not identical. For example, while it is not for this Court to determine the validity, reliability, or even admissibility of the polygraph examinations administered in this case, the fact that defense counsel had each of the petitioners undergo such tests prior to trial, and the results were inconsistent, indicated a strong likelihood that it would have been in the best interests of at least one of the petitioners to subject his co-defendant to a rigorous cross-examination of that individual's knowledge of the events of September 12-13, 1977. Because both petitioners were represented by the same attorney at trial, however, no such examination was possible without undermining the rule that one's attorney must be "devoted solely to the interests of his client." United States ex rel. Hart v. Davenport, 478 F.2d 203, 209 (3d Cir.1973).

As a general proposition, an actual conflict of interest is not demonstrated merely by a showing that cross-examination of a co-defendant would have been possible with separate as opposed to joint representation. See, e.g., Smith v. Regan, 583...