Deerman v. State, 8 Div. 968

• Decision Date: 20 March 1984
• Docket Number: 8 Div. 968
• Parties: Ronnie DEERMAN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1013

466 So.2d 1013

Ronnie DEERMAN v. STATE.

8 Div. 968.

Court of Criminal Appeals of Alabama.

March 20, 1984.

On Return to Remand Oct. 23, 1984.

Rehearing Denied Nov. 27, 1984.

Cecil M. Matthews, Albertville, for appellant.

Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Ronnie Deerman, the appellant, was indicted and convicted for receiving stolen property in the first degree. He was sentenced as an habitual offender to fifteen years' imprisonment. Three issues are presented on appeal.

I

The first two issues involve the allegations that Deerman's retained trial counsel had a conflict of interest because he represented a State witness in pending civil litigation.

Deerman retained the Honorable Clyde D. Baker to represent him at trial. During the trial, this issue did not surface until after the jury had retired to begin their deliberations and defense counsel called the matter to the attention of the trial judge "MR. BAKER: I have made known to the Court after the jury retired that I represent Willis Davis as my client in a civil matter unrelated to any of the proceedings here today. I have also informed my client, Ronnie Deerman, of my representation of Mr. Davis after the jury retired. He, to my knowledge, did not know that before the trial took place.

"THE COURT: All right. And of course, the--what you're representing to the Court is that there might be as a matter of law a conflict between the two representations.

"MR. BAKER: I did not believe that to be so, but as an afterthought, I decided to disclose it to the Court and then to my client. I--I am not of that opinion, but as a matter of caution or whatever, I am making that known.

"THE COURT: All right. Mr. Deerman, I am not going to make any kind of ruling on it at this time because there is no ruling before the Court to make. I will ask you now, and Mr. Baker may not want you to answer this.

"Do you feel that there was any failure of effective counsel to represent you because Mr. Baker does represent Mr. Davis in a civil matter?

"MR. BAKER: May I say, Judge, that I would encourage him to express whatever concern he may have to the Court.

"THE COURT: Thank you. Do you have anything you want to say, Mr. Deerman?

"THE DEFENDANT: No, sir.

"THE COURT: Do you have--do you have a feeling that you have not been effectively represented by Mr. Baker?

"THE DEFENDANT: I feel he did his best to represent me in this matter.

"THE COURT: You have no complaint as far as the representation?

"THE DEFENDANT: No, sir.

"THE COURT: All right. Thank you, gentlemen."

Defense counsel further established that Deerman understood who Willis Davis was. After the jury returned its verdict of guilty, Deerman asked and was allowed to talk with his attorney, after which notice of appeal was given. The defense counsel stated that he did not want to represent Deerman on appeal: "I wanted to say that although I gave notice of appeal, I would not want at this time to appear as attorney of record for the appeal because of the facts that were related here. * * * He may decide differently."

The sentencing hearing was held fifteen days after the trial. At that time, Mr. Baker informed the trial judge that Deerman "wishes to dismiss me at this moment." Then the following occurred:

"THE COURT: I'm not going to allow you to withdraw or for him to dismiss you at this point. What reasons, Mr. Deerman, do you want to dismiss Mr. Baker, Mr. Deerman?

"THE DEFENDANT: To begin with, the fact that he represented one of the State's witnesses against me. I have employed him since November, and he should have told me before he did, which was in the middle of the trial. And there were facts and points that were not brought up in my trial, and I do not feel like I was defended properly in my case.

"THE COURT: Well, I think we would probably have to go through a further proceeding on that perhaps in reference to a motion for a new trial, but at this point, on sentencing, what do you feel that Mr. Baker is not representing you properly in this matter?

"THE DEFENDANT: Yes, sir, in with this State's witness--

"THE COURT: I believe I asked you at the time of the trial your feeling about Mr. Baker and that situation, and I believe you said he had done everything he could.

"THE DEFENDANT: Yes, sir. I was afraid to be left in the middle of my trial. I asked him the morning of my trial if he was aware of civil cases that was pending on this witness against me, but he didn't tell me he represented him. Had he, I would have dismissed him then and there."

During the sentencing hearing, Deerman repeatedly asserted that he had the financial ability to retain counsel and that he intended to get his own attorney for a probation revocation hearing that was pending. The trial judge denied Deerman's request to dismiss counsel:

"THE COURT: Okay. Fine. The Court determines at this point--I'm sure the matter will be raised on other motions--but at this point, the Court determines that the defense counsel is well-trained, well-organized, and most competent, and this Court heard this case and determined the--not only the evidence that was presented but the statement that was made by the Defendant. The Court not only read that but listened to the tape recording of the same. The Court at this point judicially determines that the defense counsel most competently handled the case that in the Court's mind or opinion clearly showed the guilt of the Defendant. This Court has no question that the counsel for the Defendant did everything that he could possibly do in the face of the statement made by the Defendant himself to defend the Defendant.

"Therefore, the Court denies the Defendant's motion to dismiss his attorney, denies the attorney's motion to withdraw, and determines that the case will be proceeded with."

The trial judge sentenced Deerman and, once again, Deerman asserted that he intended to and would be able to get another attorney.

Almost three weeks after being sentenced, Deerman appeared in court, claimed indigency, and the trial judge appointed the Honorable Phillip Green for "appeal or other post judgment matters." Three weeks later, the trial judge appointed the Honorable Cecil M. Matthews to represent Deerman, after Green "failed to contact the defendant or proceed with such (post judgment) matters, and upon the filing of pro se demands for relief."

Willis Davis was a witness for the State. He testified that Deerman attempted to sell him the stolen paint sprayer and that he inspected the property. After he learned from the owner that the sprayer was stolen, he went to the Albertville Police and showed them the stolen property. He received a $500 reward from the owner.

On direct examination, Davis testified that, during a recess in the trial and before he testified, Deerman said "he would get me for it." The nature of the "unrelated civil matter" in which Baker represented Davis is not revealed in the record.

The guarantee of the Sixth Amendment to the assistance of counsel for one's defense includes the right to the assistance of an attorney unhindered by a conflict of interest. Cuyler v. Sullivan, 446 U.S. 335, 355, 100 S.Ct. 1708, 1721, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 483, n. 5, 98 S.Ct. 1173, 1178, n. 5, 55 L.Ed.2d 426 (1978). "Actionable conflict of interests" have been found to exist with respect to the representation by the same defense counsel of a non co-defendant prosecution witness at a separate proceeding. Annot. 18 A.L.R. 4th 360, Section 12(a) (1982), citing Pinkerton v. State, 395 So.2d 1080 (Ala.Cr.App.1980), cert. denied, 395 So.2d 1090 (Ala.1981). In Pinkerton, a drug sale prosecution, a conflict was found where defense counsel had previously represented the informant who was the prime figure in the arrest of the defendant. The informant had been convicted of selling narcotics, and had agreed to cooperate with law enforcement officers in exchange for a recommendation of a mitigated sentence and had not yet been sentenced. This Court found it "clear ... that appellant's trial attorney could not very well seek to fully represent the appellant, when that representation would of necessity involve an attack upon the credibility of the chief witness, Vickers, especially where the attorney had had a role in negotiating the agreement by which Vickers would inform in exchange for a possibly mitigated sentence." Pinkerton, 395 So.2d at 1089.

In this case, we are faced with several considerations, no one or combination of which steers us to any clear conclusion as Also, we note that Deerman expressed his satisfaction with his retained counsel before the verdict was returned and raised his objection only at the sentencing hearing. We have some difficulty in finding any waiver in this case under the test set forth in Zuck v. Alabama, 588 F.2d 436, 440 (5th Cir.1979):

to the existence or nonexistence of an actual conflict. We note that it was defense counsel himself who called the matter to the attention of the trial judge. Counsel felt there was no conflict. "Courts generally give substantial weight to defense counsel's representations regarding conflicts of interest." United States v. Agosto, 675 F.2d 965, 972 (8th Cir.1982); United States v. Burroughs, 650 F.2d 595, 598 (5th Cir.1981).

"While it is true that a defendant can waive his right to effective assistance of counsel, a waiver is valid only if it is knowingly and intelligently made. United States v. Alvarez, [580 F.2d 1251] at 1259-60 [ (1978) ]; Gray v. Estelle, 574 F.2d 209, 213 (5th Cir.1978); United States v. Garcia, 517 F.2d 272, 276 (5th Cir.1975). In order for a waiver of the right to conflict-free counsel to be knowing and intelligent, the State must show that the defendant (1) was aware that a conflict of interest existed; (2) realized the consequences to his defense that continuing with counsel under the onus of a conflict...