In re Osborne

• Decision Date: 10 January 2000
• Docket Number: Docket No. 200296.
• Citation: 603 N.W.2d 824,237 Mich. App. 597
• Parties: In the Matter of Dylan OSBORNE, Minor. Family Independence Agency, Petitioner-Appellee, v. Dyphine Osborne, Respondent-Appellant.
• Court: Court of Appeal of Michigan — District of US

603 N.W.2d 824

237 Mich. App. 597

In the Matter of Dylan OSBORNE, Minor.

Family Independence Agency, Petitioner-Appellee, v. Dyphine Osborne, Respondent-Appellant.

Docket No. 200296.

Court of Appeals of Michigan.

Submitted April 12, 1999, at Lansing.

Decided September 21, 1999, at 9:00 a.m.

Released for Publication January 10, 2000.

Jennifer M. Granholm, Attorney General, and Thomas L. Casey, Solicitor General, Tony Tague, Prosecuting Attorney, and Danielle DeJong, Senior Assistant Prosecuting Attorney, for the Family Independence Agency.

Cook & Houghtaling, PLC (by Shon A. Cook), Muskegon, for Dyphine Osborne.

Before: MARKEY, P.J., and RICHARD ALLEN GRIFFIN and WHITBECK, JJ.

ON REMAND, AFTER REMAND

RICHARD ALLEN GRIFFIN, J.

This case involving the termination of parental rights returns to us following a Supreme Court opinion that vacated our prior decision and directed a remand of the case to the circuit court for an evidentiary hearing. In re Osborne, 459 Mich. 360, 589 N.W.2d 763 (1999). At the conclusion of the hearing, the circuit court found no prejudice resulting from the conflict of interest of petitioner's attorney and reinstated the order terminating respondent's parental rights to her minor child. We affirm.

I

During the course of the neglect proceedings that involved numerous hearings that spanned a three-year period and culminated in the termination of her parental rights, respondent was represented by five different court-appointed attorneys. Correspondingly, petitioner was represented by three different assistant prosecuting attorneys. One of respondent's attorneys was Kevin Wistrom, who represented respondent at a review hearing on August 22, 1995. During the hearing, Mr. Wistrom conducted a direct examination of Ms. Osborne and cross-examined two other witnesses. Approximately one year later, Mr. Wistrom, then a Muskegon County assistant prosecutor, represented petitioner against his former client during a three-day permanent wardship trial.

In our prior decision, In re Osborne, 230 Mich.App. 712, 716-717, 584 N.W.2d 649 (1998), we held, inter alia, "that where the right to court-appointed counsel exists, there is a correlative right to representation that is free from conflicts of interest." In so holding, we quoted Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):

"In Cuyler v. Sullivan [446 U.S. 335, 345-350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) ], the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts ... it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest.... Prejudice is presumed only if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.' Cuyler v. Sullivan, supra, 446 U.S. [335, 348, 100 S.Ct. 1708,] (footnote omitted.)." [In re Osborne, supra at 717, 584 N.W.2d 649.]

Further, we held that although the ethical violation may have been unintended, Mr. Wistrom's prosecution of his former client in the same proceeding violated the Michigan Rules of Professional Conduct, MRPC 1.11(c)(1) and MRPC 1.9(a).¹ We acknowledged the position of the petitioner that there was no record evidence that Mr. Wistrom was aware of his actual conflict of interest and no evidence to prove that Mr. Wistrom relied on any privileged information obtained from his former client. Nonetheless, relying in part on People v. Grant, 445 Mich. 535, 553, 520 N.W.2d 123 (1994),² we held that although respondent's fifth court-appointed attorney made no objection regarding the conflict of interest, the error was plain³ and warranted reversal irrespective of actual prejudice.

In vacating our decision and remanding for an evidentiary hearing, the Supreme Court stated, "The existing record does not persuade us that this case must be retried." In re Osborne, supra at 369, 589 N.W.2d 763. In directing a remand for an evidentiary hearing, the Supreme Court apparently wanted a record on the issue whether respondent sustained actual prejudice and, if so, the extent of involvement of the prosecutor's office. Because the Supreme Court was not persuaded that a retrial was required on the basis of the prior record, the Court implicitly determined that Mr. Wistrom's actual conflict of interest did not fall into the category of errors that "`seriously' affects the fairness, integrity, or public reputation of judicial proceedings," errors that would compel automatic reversal. Grant, supra at 549-550, 520 N.W.2d 123. See also People v. Carines, 460 Mich. 750, 763-764, 597 N.W.2d 130 (1999).

After the remand, the Muskegon Circuit Court, Family Division, held an evidentiary hearing. At the commencement of the hearing, respondent's current court-appointed attorney, Shon A. Cook, orally moved to withdraw from the case claiming a breakdown in the attorney-client relationship as evidenced by the absence of any contact by her with her client for almost two years. Ms. Cook stated, "I haven't had any opportunity to discuss her appeal or any aspect of this case with her [Ms. Osborne]." The sole witness called was Kevin Wistrom, who testified that during the three-day permanent wardship trial, he did not recall his prior representation of respondent, his direct examination of her, or obtaining any information from her. Following the conclusion of Mr. Wistrom's "no recollection" testimony, both petitioner and respondent's counsel advised the court that no further witnesses would be called. This resulted in the following protestation by respondent:

Dyphine Osborne: I don't get to say anything at any of these hearings, at the end of them or anything.

The Court: Well, um,....

Dyphine Osborne: Do you know something, I want, you know, why don't you just file for a grand Jury or something, if we're having this many problems.

The Court: Okay, the hearing is closed then at this time.

In its order on remand, the circuit court found no prejudice resulting from the conflict of interest of Mr. Winstrom. The order provides that Mr. Wistrom (who is no longer with the Muskegon prosecutor's office) "is disqualified from further representation of any party in this matter;" however, the Muskegon prosecutor's office is not disqualified in the representation of the Family Independence Agency because of the disqualification of Mr. Wistrom. Finally, the circuit court reaffirmed the previous order terminating the parental rights of respondent to her minor child.

Although we are troubled by the apparent ineptitude of respondent's court appointed attorneys, the factual findings made by the trial judge following the evidentiary hearing are not clearly erroneous and are therefore affirmed. MCR 2.613(C), 5.974(1). In addition, because the Supreme Court, previously stated that "[t]he existing record does not persuade us that this case must be retried," 459 Mich. at 369, 589 N.W.2d 763 we believe that the Supreme Court has concluded that a plain error regarding a conflict of interest of counsel falls within the category of error for which prejudice must be proved before reversal may be ordered. In the present case, because actual prejudice has not been demonstrated, we will not reverse on the basis of plain error.

II

However, for the reasons expressed below, we urge the Supreme Court to reconsider the issue. Were we permitted, we would hold that the present actual conflict of interest of petitioner's counsel falls within the category of plain error that seriously affects the structural fairness, integrity, or reputation of the judicial proceeding and thus compels reversal despite the lack of demonstrable prejudice.

In Grant, supra at 549-550, 520 N.W.2d 123, our Supreme Court adopted the following standard from United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), for evaluating nonconstitutional, plain error:

[T]he Olano majority provided a separate test for reversal: a federal appellate court may reverse a plain forfeited error (1) where a miscarriage of justice would result because the defendant is actually innocent or (2) if the error "seriously affects" the fairness, integrity, or public reputation of judicial proceedings. Id., 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d at 521.

In regard to the related doctrine of harmless error, the United States Supreme Court in Arizona v. Fulminante, 499 U.S. 279, 308-310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (opinion by Rehnquist, C.J.), explained the distinction between a constitutional "trial error" and a "structural defect" error that seriously affects the fundamental fairness, integrity, or public reputation of the judicial proceeding:

In Chapman v. California, [386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ], the Court stated:

"Although our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error, this statement in Fahy [v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963) ] itself belies any belief that all trial errors which violate the Constitution automatically call for reversal."

* * *

The admission of an involuntary confession— a classic "trial error"—is markedly different from the other two constitutional violations referred to in the Chapman footnote as not being subject to harmless-error analysis. One of those violations, involved in Gideon v. Wainwright, 372 U.S. 335, [83 S.Ct. 792, 9

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