Hodge v. Reeves, 86-7538
| Decision Date | 06 October 1986 |
| Docket Number | No. 86-7538,No. 86-7539,86-7538,86-7539 |
| Citation | 803 F.2d 713 |
| Parties | Unpublished Disposition NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Stanley Hodge, Appellant v. Hazel Reeves, Sheriff of Sumter County; Daniel R. McLeod, Attorney General of the State of South Carolina, Appellees. Jessie McLeod, Appellant v. Hazel Reeves, Sheriff of Sumter County; Daniel R. McLeod, Attorney General of the State of South Carolina, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Before WIDENER, SPROUSE, and CHAPMAN, Circuit Judges.
Lester L. Bates, III, and Samuel R. Haskell for Appellants; Donald J. Zelenka, Chief Deputy Attorney General (T. Travis Medlock, Attorney General on brief) for Appellees.
Stanley Hodge and Jessie McLeod were convicted in a joint trial in the Court of General Sessions for Sumter County, South Carolina, at which they were represented by the same attorney. They now attack their convictions under 28 U.S.C. Sec. 2254 (1982), and they raise the same question: "At what point in time must an objection to multiple representation be made in order to be deemed timely under Holloway v. Arkansas, 435 U.S. 475 (1978) and therefore trigger the "automatic reversal" rule?" We conclude that the timing of the objection to multiple representation is only one of the elements that must be considered under Holloway and that, upon the facts in the present case, there was no showing of a conflict between the interests of Stanley Hodge and Jessie McLeod while being represented by the same attorney in their joint state criminal trial. We affirm the district court in denying relief.
On or about Thanksgiving Day 1980, Darryl Pierce, a juvenile, and one David Corbett, whose age is not reflected in the record, broke into the residence of Mr. and Mrs. William S. Heath. They took from the residence a sterling silver creamer and sugar dish, a considerable amount of flat silverware, other silver pieces, and some items of jewelry. The cream and sugar set was considered an antique and valued by the owner at $2500. The flat silver was valued at $16,000, and the other pieces were valued at $300. These stolen goods were stashed near the Heath home and later recovered by Pierce and Corbett. On the day after Thanksgiving, November 28, 1980, Corbett contacted two other juveniles, Greg Gregory and Henry Ardis, Jr., and asked them to assist in selling the silver. Several places were visited in an effort to dispose of the loot. The cream and sugar set was offered to Stanley Hodge on November 28, 1980, and bought on that date by Jessie McLeod.
Following an investigation, McLeod and Hodge were indicted as accessories after the fact of a felony, receiving stolen goods, and criminal conspiracy. They were represented at trial by the same counsel, C. C. Harness, III, of Summerton, South Carolina. McLeod was convicted on all three counts. Hodge was found guilty of accessory after the fact of a felony and criminal conspiracy, but he was found not guilty of receiving stolen goods. Each appealed to the South Carolina Supreme Court. Hodge's conviction as accessory after the fact of a felony was reversed, State v. Hodge, 278 S.C. 110, 292 S.E.2d 600, cert. denied, 459 U.S. 910 (1982). McLeod's conviction as accessory after the fact of a felony was reversed, State v. McLeod, 278 S.C. 112, 293 S.E.2d 699, cert. denied, 459 U.S. 910 (1982). The remaining convictions of both appellants were affirmed.
In 1980, Stanley Hodge owned Allsbrook's Grocery Store in Sumter. Jessie McLeod owned and operated a business known as G & M Music Company, which owned game machines and placed them in various locations, including Allsbrook's Grocery. In the late 1970s, as the price of gold and silver began to escalate, Hodge and McLeod began buying used gold and silver for resale. The prices they paid for these metals were based entirely upon the weight of the article. After they had accumulated a number of articles, they would either take them to Columbia, South Carolina, or send them to a dealer in the Midwest. At some time during 1979, McLeod and Hodge, together with one of Hodge's brothers, formed a partnership to buy and sell gold and silver. Each partner put up $10,000, and the venture was known as G & S Metals. No formal partnership agreement was ever executed, and apparently no books were kept, but there was a joint bank account with each partner having the right to draw upon the account. When G & S Metals began to do business, no license was required to buy gold and silver in Sumter. A license ordinance was passed about November 1980, but Hodge never obtained a license. McLeod's business was outside the city and not covered by the ordinance. McLeod testified that the business purchased between $150,000 and $200,000 of gold and silver during the year 1980 and that their advertising budget was between $7,000 and $8,000.
The Sumter police discovered the break-in of the Heath residence on the day following Thanksgiving. The Heaths were out of town, but they were contacted and returned immediately. Mr. Heath compiled a list of the valuables stolen from his home. The police reproduced this information and circulated it among purchasers of gold and silver in the Sumter area to alert them that such items might be offered for sale. These fliers were known as "hot sheets." Such a flier was distributed on Saturday after Thanksgiving to McLeod's business and on the following Monday to Hodge personally. McLeod denied that he ever saw the flier and Hodge testified that he had no recollection of an officer bringing it to his store.
The police officers cracked the case as a result of leads developed about young males trying to sell silver to other dealers. Gregory, Pierce, and Ardis all gave statements to the police, and these statements led to the indictment of Hodge and McLeod. Gregory's statement was given December 9, 1980. He stated that he and Ardis had offered the cream and sugar set to the man at Allsbrook's who said he could not take it but directed him to a friend located on Highway 15 South. The silver set was left at Allsbrook's while Gregory ran an errand. When Gregory returned for the silver, he and Ardis met McLeod, who was the person that the man at Allsbrook's had mentioned. The man at Allsbrook's was Hodge. McLeod instructed Gregory and Ardis to follow him to his place of business, and there he purchased the cream and sugar set for $240. Later the same day, Gregory, Ardis, Corbett, and Pierce went back to McLeod's place and sold him" a pillowcase full of silver that had been stolen by Pierce and Corbett for $310. Pierce's statement indicated that he was not present when the silver cream and sugar set was offered to Hodge and later sold to McLeod, but he did go on the second trip to McLeod's place to sell the pillowcase full of flat silver.
Ardis' statement was given December 9, 1980, and revealed that a month earlier Corbett, Gregory, and he had sold rings and some silver at Allsbrook's grocery. He did not say whether these items were stolen. He stated that on a Thursday night Corbett called him and asked him to sell some silver on the following day. He and Corbett went to Pierce's house where Pierce handed them a pillowcase containing silver. They went to Copeland's, a business in Sumter, but could not make the sale because they had no identification. They went to Allsbrook's, and Gregory went in. He came out and reported that the man inside lacked cash to buy the silver but would keep it until they returned later to pick up the money for the silver. When they returned for the money, Gregory advised that they were going to follow a man (McLeod) to another store on Highway 15. They went to McLeod's place, and he paid Gregory for the silver.
On December 11, 1980, arrest warrants were issued for McLeod and Hodge. Before they were indicted, they retained C. C. Harness, III, to represent them jointly. Prior to indictment, a preliminary hearing was held at which Harness appeared for both. Shortly after he became counsel, Harness received copies of the statements of Gregory, Pierce, and Ardis. The indictment was returned on March 2, 1981. Harness obtained a continuance, and the case was tried in June 1981. At the commencement of the trial, there were two attorneys sitting at the defense table. In addition to Harness, there was T. H. Davis, III, and the trial judge asked if Davis represented McLeod. Davis replied that he was "just amicus," but he was apparently assisting Harness in selecting the jury since Harness was not from Sumter County. The record does not show how long Harness remained at the defense table, but he was there at the time of the first motion for a mistrial.
Harness realized that there were certain inconsistencies in the statements of the juveniles and moved that the witnesses be sequestered. This motion was granted. Harness did not indicate that any such inconsistency would produce a conflict between his two clients. In his opening statement he advised the jury that his clients were legitimate gold and silver dealers and that they cooperated with the police.
The first witness called was Mr. Heath, and he testified as to the items stolen from his home and their value. The second witness was Darryl Pierce, and he explained the break-in and the theft of silver. He testified that Corbett was with him and that Corbett would arrange with Gregory and Ardis to sell the silver. He thought that the sale was about four days after the theft. Pierce testified that he accompanied Gregory and Ardis to a store on Broad Street where they attempted unsuccessfully to sell the cream and sugar set. Thereafter, he stated that Gregory and Ardis retained the cream and...
To continue reading
Request your trial