Fleming v. State

• Decision Date: 01 July 1980
• Docket Number: No. 36144,36144
• Citation: 270 S.E.2d 185,246 Ga. 90
• Parties: FLEMING v. The STATE.
• Court: Georgia Supreme Court

Page 185

270 S.E.2d 185

246 Ga. 90

FLEMING v. The STATE.

No. 36144.

Supreme Court of Georgia.

Argued April 15, 1980.

Decided June 9, 1980.

Rehearing Denied July 1, 1980.

Millard C. Farmer, Jr., Atlanta, for appellant.

Vickers Neugent, Dist. Atty., Arthur K. Bolton, Atty. Gen., for appellee.

UNDERCOFLER, Chief Justice.

We today decide under this court's supervisory role over the Bar of this State and under our mandate to review death sentences that the same attorney shall not represent co-defendants in cases in which the death penalty is sought. Because of the difficulty in assessing possible conflicts of interests, we believe that this rule will assure that each defendant receives the effective assistance of counsel guaranteed him by the Sixth Amendment.

Son H. Fleming, his nephew, Larry Donnell Fleming, and Henry Willis, III, are accused of committing armed robbery in Cook County, of kidnapping Chief of Police James Edward Giddens in Berrien County, and of murdering him in Lanier County on February 11, 1976. Son Fleming and Henry Willis have both been separately tried, convicted and sentenced to death. Fleming v. State, 240 Ga. 142, 240 S.E.2d 37 (1977); 243 Ga. 120, 252 S.E.2d 609 (1979); Willis v. State, 243 Ga. 185, 253 S.E.2d 70 (1979).

Son Fleming was represented by both retained and appointed counsel. Willis was, and still is, represented by his retained attorney, Millard C. Farmer, Jr. Larry Fleming has also retained Farmer to represent him. The State made a motion in the trial court to disqualify Farmer from representing Fleming because of a conflict of interest between Willis and Fleming. Willis has several times, including in his testimony at his own trial, claimed, albeit inconsistently, that Larry Fleming also shot Chief Giddens. At other times he has admitted doing the shooting himself. Fleming has consistently denied shooting the policeman. The record, therefore, reveals an obvious ¹ conflict of interest between these two co-defendants.

The position of the Supreme Court of the United States on such conflicts of interest is clear: "(W)henever a trial court improperly requires joint representation over timely (defense) objection reversal is automatic . . . 'The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.' " (Emphasis supplied.) Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978). However, in Cuyler v. Sullivan, --- U.S. ----, ----, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980), that same Court held that "(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." (Emphasis supplied.) Compare Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.2d 680 (1942), and Dukes v. Warden, 406 U.S. 250, 92 S.Ct. 1551, 32 L.Ed.2d 45 (1972). But, "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." ² Cuyler v. Sullivan, --- U.S. at p. ----, 100 S.Ct. at p. 1719. Here, however, where there is an obvious conflict, the State made a motion to disqualify Fleming's attorney prior to the trial in order to prevent built in reversible error. ³ The trial court disqualified Farmer.

Fleming argued that his disqualification deprived him of the counsel of his choice and attempted to waive the disqualification in the trial court. The trial court refused to accept Fleming's waiver. Fleming appeals. We affirm.

1. We reach first Fleming's contention that he desires to waive any possible conflict of interest so that Farmer may continue to represent him. In order to waive a right as fundamental as effective counsel, the trial court must, on the record, determine that the waiver is knowing, intelligent and voluntary. Glasser v. United States, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). To meet this test, the trial court must be satisfied that the defendant is aware of the possibility of conflicts and the dangerous consequences which may result. E. g.: United States v. Garcia, 517 F.2d 272 (5th Cir. 1975). The numerous United States Circuit Courts of Appeals which have addressed the issue point out the importance of personal questioning, on the record, by the trial court. E. g.: United States v. Carrigan, 543 F.2d 1053 (2nd Cir. 1976); United States v. Gaines, 529 F.2d 1038 (7th Cir. 1976); United States v. Garcia, supra; United States v. Foster, 469 F.2d 1 (1st Cir. 1972); Campbell v. United States, 352 F.2d 359 (D.C.Cir.1965).

Yet this procedure is not itself without problems. The court is unaware of potential areas of conflict and can only allude to the possibilities in the most general terms. Beyond that, the court cannot be sure the defendant is sophisticated enough to understand. Indeed, in Glasser v. United States, supra, the United States Supreme Court pointed out that Glasser, who was himself an Assistant United States Attorney, had not waived his right to independent counsel.

Other problems are also apparent. Here, for example, the very attorney whose disqualification was at issue instructed his client not to answer any of the trial court's questions, even of the most innocuous sort. We thus find this procedure ineffective ⁴ and fraught with its own constitutional infirmities and refuse to adopt a similar procedure where the death penalty is involved. ⁵ See generally, Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn.L.Rev. 119 (1978).

We note further that there is no record of any waiver by Willis. Though already convicted, Willis is still represented by Farmer. It is obvious that the necessary constitutional waiver must be obtained from all the parties whose interests are at stake. This failing alone is reason enough to find that Fleming has not satisfactorily overcome the constitutionally mandated disqualification of his attorney. We, however, rest today's decision on another ground.

This court has the inherent power to govern the practice of law in this State. Huber v. State, 234 Ga. 357, 216 S.E.2d 73 (1975); Fortson v. Weeks, 232 Ga. 472, 208 S.E.2d 68 (1974); Sams v. Olah, 225 Ga. 497, 169 S.E.2d 790 (1969); Wallace v. Wallace, 225 Ga. 102, 166 S.E.2d 718 (1969). This court also has been mandated to review the administration of the death penalty. Code Ann. § 27-2537. The Code of Professional Responsibility of the Rules and Regulations of the State Bar of Georgia, created and established by order of this court in 1963, provides, under Canon 5, that a "lawyer should exercise independent professional judgment on behalf of a client." Code of Professional Responsibility, Rule 3-105. Under Director Rule 5-105, an attorney must refuse to accept or continue employment if his independent judgment may be adversely affected by his representation of another client. ⁶ See also Code Ann. § 9-701; Code of Professional Responsibility, Rules 3-104, 3-107; ABA Code of Professional Responsibility, DR 5-105; ABA Defense Standards § 3.5(b).

In addition, we have noted with interest the case of United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978), where the Court of Appeals for the Third Circuit, affirmed the disqualification of co-defendants' attorney on the trial court's own motion. Because the trial court was not able to inform the defendant of the possible consequences of multiple representation, it was not satisfied that it could accept a constitutionally sufficient waiver. In affirming, the Court of Appeals held that "when a trial court finds an actual conflict of interest which impairs the ability of a criminal defendant's chosen counsel to conform with the ABA Code of Professional Responsibility, the court should not be required to tolerate an inadequate representation of a defendant. Such representation not only constitutes a breach of professional ethics and invites disrespect for the integrity of the court, but it is also detrimental to the independent interest of the trial judge to be free from further attacks over the adequacy of the waiver or the fairness of the proceedings in his own court and the subtle problems implicating the defendant's comprehension of the waiver. Under such circumstances, the court can elect to exercise its supervisory authority over members of the bar to enforce the ethical standard requiring an attorney to decline multiple representation." United States v. Dolan, supra, p. 1184. We today adopt this as a mandatory rule in death penalty cases under our supervisory powers. We therefore hold that, where the State seeks the death penalty against any one defendant in a criminal transaction, he and his co-defendants must be provided with separate and independent ⁷ counsel. Such a rule is especially necessary where the death penalty is sought, because in these cases even a slight conflict, irrelevant to guilt or innocence, may be important in the sentencing phase. Green v. Georgia, 442 U.S. 95, 99 S.Ct. 2150, 60 L.Ed.2d 738 (1979); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). Any attorney representing multiple defendants in such a case is subject to disciplinary proceedings if he refuses to withdraw such representation.

Faced with an actual conflict of interests in a death penalty situation, the trial court here refused to accept a waiver, and disqualified Fleming's attorney. We affirm for the reasons stated above.

2. Fleming also contends that the disqualification of his retained attorney violated his right to the attorney of his choice. That right, however, is not unqualified. A defendant has the right to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). However,...