Henderson v. Smith, 89-1050

• Decision Date: 06 July 1990
• Docket Number: No. 89-1050,89-1050
• Parties: Judy A. HENDERSON, Appellant, v. Donald SMITH; Attorney General, State of Missouri, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 534

903 F.2d 534

Judy A. HENDERSON, Appellant, v. Donald SMITH; Attorney General, State of Missouri, Appellees.

No. 89-1050.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1989.

Decided May 9, 1990.

Rehearing Denied July 6, 1990.

Robert B. Ramsey, St. Louis, Mo., for appellant.

Jared Cone, Jefferson City, Mo., for appellees.

Before ARNOLD and MAGILL, Circuit Judges, and HEANEY, Senior Circuit Judge.

MAGILL, Circuit Judge.

Judy A. Henderson appeals the district court's ¹ order denying her petition for writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. The district court found that trial counsel's dual representation of Henderson and her lover ² did not violate her sixth amendment right to effective assistance of conflict-free counsel. ³ After a careful review of the record, we hold that Henderson knowingly, voluntarily and intelligently waived her right to conflict-free counsel. Therefore, we need not reach the merits of her claim. We affirm the order of the district court albeit on different grounds.

I.

Henderson was convicted of capital murder and sentenced to life imprisonment without the possibility of either parole or probation for fifty years. The Missouri Court of Appeals affirmed her conviction on direct appeal. State v. Henderson, 666 S.W.2d 882 (Mo.App.1984). Henderson subsequently initiated a post-conviction proceeding in the Circuit Court of Greene County (motion court) pursuant to Rule 27.26 (repealed effective January 1, 1988). The court dismissed her motion to vacate judgment. She appealed the dismissal to the Missouri Court of Appeals. In denying Henderson relief, the court set forth the facts as developed during the course of the Rule 27.26 evidentiary hearing before the motion court.

Harry Klein was found murdered in Greene County, Missouri, on July 13, 1981. A few days later, [Henderson] and her paramour, Greg Cruzen, met with attorney James L. McMullin at his office in Kansas City. They informed McMullin that they wished to employ him as counsel when and if they should be apprehended for the murder of Klein. Each admitted to McMullin their participation in the robbery and murder of Klein. They told him it was their intention to flee to Alaska. He advised against such flight.

McMullin further told them that a time may come in the representation where their interests might become divergent. He suggested that each employ separate counsel in order to avoid the creation of any conflict. Each of the defendants declined this suggestion.

....

[Henderson] and Cruzen fled to Alaska, where they were eventually arrested for capital murder.

After waiving extradition and returning to Missouri, [Henderson] and Cruzen were jointly represented by McMullin. At one point prior to [Henderson]'s trial, the Greene County prosecutor approached McMullin with a plea bargain agreement, under the terms of which if [Henderson] would plead guilty to first degree murder and truthfully testify against Cruzen, she would receive a life sentence, rather than be tried for capital murder. McMullin testified that he informed both of the defendants about this plea offer and also informed them that he would have to withdraw if either decided to testify against the other, again citing the conflict of interest that would develop. Cruzen, who testified on behalf of [Henderson], essentially confirmed McMullin's version of events; that being that, prior to [Henderson]'s trial, each of the defendants professed their love for one another and did not desire to accept any plea bargain which would require one of them to testify against the other.

Attorney Ben Upp of Springfield had been acting as local counsel for [Henderson] during the period of time prior to her trial. At no time did Upp represent Cruzen. He had been employed for [Henderson] by her family. [Henderson] was informed by Upp of the state's offered plea bargain. She never informed Upp of her desire to accept the plea bargain.

[Henderson] denied that McMullin ever discussed a possible conflict of interest with her. However, she admitted McMullin had told both her and Cruzen that if a dispute arose between them and one decided to testify against the other, he would have to withdraw as counsel for both. While [Henderson] admitted that prior to trial she was in love with Cruzen, she also claimed to have requested McMullin to seek a plea bargain under which she would testify against her lover at his trial for capital murder. Contrary to the testimony of McMullin, Cruzen and Upp, [Henderson] stated that no plea bargain was ever communicated to her. In view of these contradictions and inconsistencies, the motion court could properly disregard [Henderson]'s testimony.

[Henderson]'s mother and stepfather were called in support of her contention that no plea agreement had been communicated to [Henderson] by McMullin. Each testified that prior to the trial, McMullin said in their presence that no plea agreement was available. From the beginning, McMullin had been instructed by [Henderson] that he should not disclose to her family that she admitted her participation in the murder of Klein. Since part of the plea agreement required 'truthful' testimony about [Henderson]'s participation, it is reasonable that the plea agreement would not be disclosed to [Henderson]'s family by McMullin.

....

The [27.26] motion court ... found as fact that McMullin had informed [Henderson] of the potential conflict of interest, and that she had given her oral waiver of the same so that she could continue having contact with Cruzen while they were incarcerated in the Greene County jail. The court also found that trial counsel did not coerce, pressure, or otherwise wrongfully induce [Henderson] to waive her rights, and that there was no attempt to mislead [Henderson] in regard to the status of plea negotiations....

The motion court concluded that the allegations of [Henderson], including those of ineffective assistance of counsel, were without merit, and dismissed the motion.

Henderson v. State, 734 S.W.2d 254, 255-57 (Mo.App.1987). After a review of the record, the Missouri Court of Appeals accepted the motion court's findings of fact and concluded not only that McMullin informed Henderson of the potential conflict of interest but that she consented to dual representation. ⁴ Id. at 258.

Henderson subsequently filed this petition for writ of habeas corpus in federal district court. After conducting an independent review of the Rule 27.26 transcript, the district court concluded that there was substantial evidence to support the finding of the motion court on each of the challenges made in the Sec. 2254 petition. ⁵ The district court subsequently denied Henderson's petition for writ of habeas corpus. It is from this order that Henderson appeals. On appeal she argues that she was denied the right to effective assistance of counsel by virtue of her trial attorney's conflict of interest. Because we find that Henderson waived her right to conflict-free counsel, we need not reach the merits of Henderson's claims.

II.

We have consistently held that the right to effective assistance of counsel may be waived, provided that waiver is knowing, voluntary and intelligent. See United States v. Bryant, 766 F.2d 370, 377 (8th Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 790, 88 L.Ed.2d 768 (1986); United States v. Poston, 727 F.2d 734, 738 (8th Cir.), cert. denied, 466 U.S. 962, 104 S.Ct. 2179, 80 L.Ed.2d 561 (1984); Larry Buffalo Chief v. State of South Dakota, 425 F.2d 271, 280 (8th Cir.1970). Once a valid waiver is found to exist, we need not inquire whether an "actual conflict of interest exists." Bryant, 766 F.2d at 378; see also Larry Buffalo Chief, 425 F.2d at 280.

To establish a valid waiver, we have also consistently required the trial court to question the defendant about her waiver, advise her of the potential danger of dual representation, allow her to ask questions about the dual representation, and place the entire procedure on the record. Bryant, 766 F.2d at 377-78 (citing United States v. Lawriw, 568 F.2d 98, 105 (8th Cir.1977), cert. denied, 435 U.S. 969, 98 S.Ct. 1607, 56 L.Ed.2d 60 (1978)). This on-the-record requirement, however, was not adopted by this circuit pursuant to any constitutional authority. Instead, it was imposed on federal district courts in this circuit pursuant to this court's supervisory authority. See Poston, 727 F.2d at 738 (requirements of Lawriw were established pursuant to supervisory powers of this court; Fed.R.Crim.P. 44(c), which requires a pretrial inquiry in all instances of joint representation in criminal proceedings, likewise applies only to federal courts).

A review of our cases decided since Lawriw demonstrates that this court has not deviated from this position. We have only imposed the standards set forth in Lawriw on federal district courts. See, e.g., Bryant, 766 F.2d at 372 (appellants convicted in federal district court on three counts of mail fraud and two counts of wire fraud); Poston, 727 F.2d at 736 (appellants convicted in federal district court of misapplying federally insured funds); United States v. Cox, 580 F.2d 317, 319 (8th Cir.1978) (appellants convicted in federal district court), cert. denied, 439 U.S. 1075, 99 S.Ct. 851, 59 L.Ed.2d 43 (1979). In Larry Buffalo Chief, this court reviewed on habeas the petitioner's state court conviction. Although this court found that petitioner had not exhausted his state court remedies, we noted in dictum that "where a possible conflict of interest is pointed out to an accused and the accused then makes an intelligent and intentional waiver, he cannot later complain." Larry Buffalo Chief, 425 F.2d at 280. While Larry Buffalo Chief was decided before Lawriw, we note that the holding of Lawriw does not apply in situations such as the one we confront today where the waiver took place during a state court proceeding. We have never forced a state court to...