Ex parte McCormick

• Citation: 645 S.W.2d 801
• Decision Date: 16 February 1983
• Docket Number: No. 69038,69038
• Parties: Ex parte Bobby F. McCORMICK and Billy J. McMahon.
• Court: Texas Court of Criminal Appeals

Page 801

645 S.W.2d 801

Ex parte Bobby F. McCORMICK and Billy J. McMahon.

No. 69038.

Court of Criminal Appeals of Texas,

En Banc.

Feb. 16, 1983.

Lynn S. Patton, Longview, Jay Topkis, Marc Fleisher and Eric M. Freedman, New York City, for McCormick.

Ebb B. Mobley, Longview, Frederick T. Davis, Frederick J. Baumann and Raymond E. Willis, New York City, for McMahon.

Robert Huttash, State's Atty., and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION

CLINTON, Judge.

"This Constitution ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

Article VI, paragraph 2, Constitution of the United States. ¹ Today the Court determines whether there has been violated the right of a criminally accused to "conflict-free" representation that the Supreme Court of the United States has insisted is inherent in "the 'Assistance of Counsel for his defense' guaranteed by the Sixth Amendment" to the Constitution of the United States. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942). ² First, however, we provide the setting for this habeas corpus proceeding.

In a joint trial each applicant was convicted for the offense of capital murder and the death penalty was assessed. On appeal all grounds of error were overruled by the Court in McMahon and McCormick v. State, 582 S.W.2d 786 (Tex.Cr.App.1978) and motion for leave to file motion for rehearing was denied January 10, 1979. ³ Certiorari was denied by the Supreme Court October 5, 1979, sub nom. McCormick et al v. Texas, 444 U.S. 919, 100 S.Ct. 238, 62 L.Ed.2d 175 and it denied rehearing December 3, 1979, 444 U.S. 985, 100 S.Ct. 492, 62 L.Ed.2d 414. Thereafter, on April 3, 1980 the trial court sentenced applicants and set June 2, 1980, for the date of their execution.

May 15, 1980, represented by fresh counsel, respectively, each applicant filed in the convicting court his petition for writ of habeas corpus, pursuant to Article 11.07, V.A.C.C.P. Promptly finding that "the petition contains no previously unresolved facts material to the legality of Applicant's confinement," the judge then presiding ordered it "overruled." The petition and its related papers were received by the Clerk of this Court May 20, 1980, and upon consideration and deliberation we entered an order dated May 22, 1980, staying execution pending final disposition of each proceeding and remanding the petitions to the convicting court for an evidentiary hearing. In pertinent part, our order noted four contentions, including deprivation of effective assistance of counsel who represented both applicants, and directed the convicting court to hold an evidentiary hearing regarding the allegations. ⁴

Conformably with the Order the convicting court held an evidentiary hearing October 12 and 15, 1981; then, taking the matters under advisement, requested and in due course received briefs as well as proposed findings of fact and conclusions of law. Thereafter, the habeas judge made his findings and conclusions and caused them to be filed with the clerk of the convicting court who, in turn, forwarded the same to the Clerk of this Court along with a transcription of the notes of the court reporter and a volume of exhibits admitted into evidence during the evidentiary hearing. Our Order having been complied with fully, the petitions, the submissions by counsel and the record were reviewed by the Court, and September 22, 1982, we directed that both causes be filed, docketed and set. See Article 11.07, § 3, V.A.C.C.P. They were submitted to the Court October 27, 1982, and we are now authorized to render judgment "as the law and facts may justify," ibid.

Based on its findings of fact the convicting court concluded, inter alia:

"... as a matter of law that the conflict of interest resulting from the joint representation of Applicants by Scroggins and Bryant adversely affected the attorneys' performance in cross-examination of State's witnesses, in argument, both at the guilt-innocence and punishment phases of the trial, and that both Applicants were denied effective assistance of counsel in violation of their Sixth and Fourteenth Amendment rights under the Constitution of the United States."

Accordingly, the court recommended that the convictions of applicants be vacated, and that they be remanded to local custody to answer the indictment against them.

This Court is not bound by the findings, conclusions or recommendations of the convicting court. Ex parte Ramirez, 577 S.W.2d 261, 263 (Tex.Cr.App.1979); Ex parte Williams, 561 S.W.2d 1, 2, n. 1 (Tex.Cr.App.1978); Ex parte Hagans, 558 S.W.2d 457, 458 (Tex.Cr.App.1977); Bazemore v. State, 430 S.W.2d 205, 206 (Tex.Cr.App.1968); Ex parte Young, 418 S.W.2d 824, 826, 830 (Tex.Cr.App.1967). More particularly the Court has held that it is free to reject a conclusion of the convicting court that an applicant suffered ineffective assistance of counsel. Ex parte Reed, 610 S.W.2d 495, 500 (Tex.Cr.App.1981) and Ex parte Harris, 593 S.W.2d 330, 333 (Tex.Cr.App.1979). On the other hand, when supported by the record, findings of the habeas judge should be accepted or, if not, then considered when thus supported, Ex parte Hurd, 613 S.W.2d 742, 743, n. 1 (Tex.Cr.App.1981); Ex parte Turner, 545 S.W.2d 470, 473 (Tex.Cr.App.1977).

In the matters before us the convicting court found that Lawrence R. Scroggins, an attorney with substantial experience of twenty six years, and D. Jennings Bryant, having three years of practice in criminal law matters, had been retained by applicants and their respective families to represent them in the cause that was tried and appealed to the Court. See McMahon and McCormick, supra, (and note that they also handled the cause on appeal). Before trial, aware of "the potential conflicts of interest in their joint representation," they never gave applicants any explanation of the nature and character of such conflict "inherent" in such joint representation, though they knew that the case against McCormick was not as strong as against McMahon and that the respective interests of their clients were "divergent."

During the course of a pretrial hearing the trial judge was presented by the State with a motion for separate trials. ⁵ Attorneys for applicants resisted successfully--the motion for severance was denied. The habeas court found that after denial of the motion neither attorney informed the judge of the trial court or the prosecutor of the conflict of interest existing in their joint representation of applicants. ⁶ It also found:

"Messrs. Scroggins and Bryant both opposed the State's motion for separate trials ... because said attorneys, aware of the conflict of interest inherent in their joint representation of Applicants, were persuaded that an actual conflict of interest would arise if separate trials were ordered requiring their withdrawal as counsel, ⁷ which would also require them to refund a portion of the cash fees already paid them by Applicants' families." ⁸

Their trial strategy was based on the assumption that both confessions would be offered and admitted into evidence, for the trial court had heard and denied motions to suppress, finding the confessions admissible. The idea was to show that McCormick had been induced to make his statement by a prosecutorial promise not to seek the death penalty against him, and then contend that McMahon gave his later statement only because Ranger Cook persuaded him to do so by reading to him McCormick's previously given "tainted" confession implicating McMahon.

As it turned out, however, the State offered and the court admitted only the confession of McMahon. ⁹ In it were statements implicating McCormick to a degree that, opting not to offer McCormick's confession, the State was otherwise unable to prove--"McMahon's confession related the events surrounding the crime in a very detailed fashion," McMahon v. State, supra, at 789. Yet, McCormick's right to confront McMahon as a witness was lost when his attorneys stoutly opposed the State's motion for severance and the trial court denied it--just as the Court held on appeal, see McMahon v. State, supra, at 793-794. ¹⁰

Further, as to developments occasioned by the State's withholding McCormick's confession from the jury, the habeas court found:

"13. The potential conflict of interest resulting from the joint representation in this case by Scroggins and Bryant of Applicants became an actual conflict of interest when the State of Texas rested its case in chief without introducing before the jury the written confession of petitioner McCormick.

"14. The actual conflict of interest adversely affected the performance of Scroggins and Bryant in the discharge of their duties as counsel for Applicants. An actual conflict of interest resulting from such joint representation by Messrs. Scroggins and Bryant existed when Mr. Bryant cross-examined the State's witness, Ranger Cook, when he disclosed to the jury during the course of such cross-examination the fact that McCormick had made a confession in the case."

The professed justification for his move was "to protect Mr. McMahon and give him a record on appeal." ¹¹

The convicting court also found that joint representation created such a conflict of interest that performance by the attorneys was adversely affected when they came to argue to the jury at both phases of the trial. Their selfimposed handicap is manifest: the more they sought to exeronate McCormick by pointing out weaknesses in the State's case, the more they damned McMahon, their other client. For instance, in this murder for hire case, counsel emphasized that the evidence failed to show McCormick received any of the substantial remuneration, leaving the jury with the notion that McMahon, who had negotiated the agreement with Tony Bohannon--McMahon v....