Hanna v. State

• Decision Date: 04 August 1999
• Docket Number: No. 45A05-9811-CR-567.,45A05-9811-CR-567.
• Citation: 714 N.E.2d 1162
• Parties: Thomas C. HANNA, Donald C. Vicari, Charles E. Bennett, George G. Gavrilos, Ronald M. Gennarelli and Steven W. Ridgley, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

714 N.E.2d 1162

Thomas C. HANNA, Donald C. Vicari, Charles E. Bennett, George G. Gavrilos, Ronald M. Gennarelli and Steven W. Ridgley, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.

No. 45A05-9811-CR-567.

Court of Appeals of Indiana.

August 4, 1999.

Transfer Denied October 15, 1999.

John F. Kautzman, Ruckelshaus, Roland, Kautzman & Hasbrook, Indianapolis, Indiana, Richard F. James, James, James & Manning, Dyer, Indiana, Attorneys for Appellants.

Jeffrey A. Modisett, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

MATTINGLY, Judge.

Thomas Hanna and five co-defendants (collectively, the defendants) appeal a trial court order granting the State's motion to disqualify the counsel jointly retained by the defendants and directing each defendant to secure individual representation. The defendants raise a single issue,¹ which we restate as whether the trial court properly disqualified defense counsel on the ground that the joint representation was inherently in conflict with the oath of counsel, even though each defendant waived, after a hearing before a magistrate and a meeting with an independent attorney, his right to conflict-free counsel.

We reverse.

FACTS AND PROCEDURAL HISTORY

In June of 1998, a grand jury found probable cause to indict the defendants, all Hammond police officers. Hanna was indicted for criminal recklessness, pointing a firearm, operating a motor vehicle while intoxicated, operating a motor vehicle while intoxicated causing serious bodily injury, obstruction of justice, and official misconduct. The other defendants were indicted for obstruction of justice and/or official misconduct.

Each defendant chose the law firm of Ruckelshaus, Roland, Kautzman and Hasbrook (Ruckelshaus) as lead counsel and the firm of James, James and Manning (James) as local counsel (collectively, defense counsel). The State moved to disqualify defense counsel, stating its concern that the joint representation might impair the State's ability to pursue agreements with individual defendants in exchange for an individual defendant's cooperation in the State's case against Hanna. The State also asserted defense counsel would be unable to cross-examine their own clients if the clients were to become State's witnesses.

Defense counsel informed each defendant of the potential conflicts, but each defendant chose to keep Ruckelshaus and James as defense counsel. A magistrate explained to each defendant how a conflict of interest could arise and how that conflict might affect each defendant's defense. An attorney not affiliated with defense counsel met with each defendant to determine whether each defendant's waiver was knowing and intelligent. It was stipulated that the attorney would testify that each defendant had made a knowing, intelligent, and voluntary waiver of any conflict of interest on the part of defense counsel.

The trial court disqualified defense counsel and issued an order to each defendant to secure individual representation, stating "[t]he joint representation by counsel, despite personal waiver, is inherently in conflict with the oath of counsel." R. at 193-99.

STANDARD OF REVIEW

The United States Supreme Court addressed the extent of the trial court's discretion to decline to accept a waiver² of this nature in Wheat v. United States, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). The Court noted that not only the interest of a criminal defendant but also the institutional interest in the rendition of just verdicts in criminal cases may be jeopardized by unregulated multiple representation. Id. at 160, 108 S.Ct. 1692. The Court further stated that the trial courts, when alerted by objection from one of the parties, have an independent duty to ensure that criminal defendants receive a trial that is fair and does not contravene the Sixth Amendment. Id. at 161, 108 S.Ct. 1692. "Thus, where a court justifiably finds an actual conflict of interest, there can be no doubt that it may decline a proffer of waiver, and insist that defendants be separately represented." Id. at 162, 108 S.Ct. 1692.

The federal district courts have similar latitude even when the conflict is only potential:

Unfortunately for all concerned, a district court must pass on the issue whether or not to allow a waiver of a conflict of interest by a criminal defendant not with the wisdom of hindsight after the trial has taken place, but in the murkier pre-trial context when relationships between parties are seen through a glass, darkly. The likelihood and dimensions of nascent conflicts of interest are notoriously hard to predict, even for those thoroughly familiar with criminal trials. It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the Government's witnesses will say on the stand. A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of legal ethics. Nor is it amiss to observe that the willingness of an attorney to obtain such waivers from his clients may bear an inverse relation to the care with which he conveys all the necessary information to them.

For these reasons we think the district court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those rare cases where an actual conflict may be demonstrated before trial, but in the more common cases where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial progresses.

Id. at 162-63, 108 S.Ct. 1692.

We note at the outset that defense counsel was disqualified in response to the State's motion and not in response to a defense request for substitute counsel. Where it is the government which moves to disqualify defense counsel, the burden is on the government to show that any infringement on the defendant's choice of counsel is justified. United States v. Diozzi, 807 F.2d 10, 16 (1st Cir.1986). Diozzi cited Flanagan v. United States, 465 U.S. 259, 268-69, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), for the proposition that the Sixth Amendment right to counsel of choice reflects a constitutional protection of the defendant's free choice independent of the concern for the objective fairness of the proceedings.

DISCUSSION AND DECISION

We hold that the trial court abused its discretion when it disqualified defense counsel on the State's motion despite the defendants' choice to be jointly represented and despite the waiver of their right to conflict-free counsel, because no actual conflict of interest had arisen and the infringement upon the defendants' choice of counsel was not shown to be justified.

With some exceptions not applicable in the case before us, the right to counsel includes the right to counsel of one's choice:

The right to counsel of choice has been described as an "essential component" of the Sixth Amendment right to counsel. . . . The right privately to retain counsel of choice derives from a defendant's right to determine the type of defense he wishes to present. Lawyers are not fungible, and often the most important decision a defendant makes in shaping his defense is the selection of an attorney. In situations where a defendant is able to retain counsel privately "the choice of counsel rests in his hands, not in the hands of the state." In criminal cases, the right to retain counsel of choice becomes a question of fundamental fairness, the denial of which may rise to a level of constitutional violation.

Barham v. State, 641 N.E.2d 79, 82 (Ind.Ct. App.1994) (citations omitted).

Requiring or permitting a single attorney to represent co-defendants, often referred to as joint representation, is not per se violative of constitutional guarantees of effective assistance of counsel. Holloway v. Arkansas, 435 U.S. 475, 482-83, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). We have further recognized that a defendant may waive his right to be represented by counsel who is unencumbered by conflicting interests. Ward v. State, 447 N.E.2d 1169, 1171 (Ind. Ct.App.1983), citing Holloway, 435 U.S. at 483 n. 5, 98 S.Ct. 1173.

The Holloway court recognized that joint representation could benefit the defendant:

This principle recognizes that in some cases multiple defendants can appropriately be represented by one attorney; indeed, in some cases, certain advantages might accrue from joint representation. In Mr. Justice Frankfurter's view: "Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack."

435 U.S. at 482-83, 98 S.Ct. 1173 (citation omitted).

The defendants note that they might be prejudiced by the removal of their chosen counsel. Having the defense speak with a single voice may reduce the ability of the prosecution to play the different defendants off against each other, Bush v. United States, 765 F.2d 683, 685 (7th Cir.1985); the exercise of that ability indeed seems to be an important part of the State's strategy here. The prosecutor told the trial court that "[i]t is, in fact, our intention to propose to one or more of the defendants a plea agreement in exchange for testimony on behalf of the state." R. at 372. A trial court dealing with the joint representation question should take into consideration the possibility that the government might seek to "manufacture" a conflict in order to prevent a defendant from having a particularly able defense counsel at his side. Wheat, 486 U.S. at 163, 108 S.Ct. 1692.

Our decisions have not addressed the extent of the right to conflict-free counsel in the context of a defendant's waiver...