Keen v. State

• Citation: 164 Ga.App. 81,296 S.E.2d 91
• Decision Date: 05 October 1982
• Docket Number: 64555,Nos. 64554,s. 64554
• Parties: KEEN v. The STATE. THOMPSON v. The STATE.
• Court: United States Court of Appeals (Georgia)

Page 91

296 S.E.2d 91

164 Ga.App. 81

KEEN v. The STATE.

THOMPSON v. The STATE.

Nos. 64554, 64555.

Court of Appeals of Georgia.

Oct. 5, 1982.

Bruce Maloy, Atlanta, for appellant in No. 64554.

Gary C. Christy, Dist. Atty., Richard Thomas, Asst. Dist. Atty., Fitzgerald, for appellee in No. 64554.

Mark J. Kadish, E. Marcus Davis, Atlanta, for appellant in No. 64555.

POPE, Judge.

Richard C. Keen and Paul J. Thompson here appeal their convictions of trafficking in marijuana. The material facts are summarized below.

On June 1, 1980 the GBI was tipped by William C. Vickery about a drug smuggling operation in Ben Hill County. Vickery owned a large tract of land along the Ocmulgee River in that county, near Fitzgerald. An airstrip was located on his land which was used by the drug smugglers. Vickery informed the GBI that four men had landed at his airstrip in a small, single engine airplane. Two of them, one later identified as appellant Keen, were staying in a motel in Fitzgerald and the other two, one later identified as appellant Thompson, were staying at the airstrip. The men were reportedly there to coordinate the incoming shipment of a large quantity of drugs. Vickery's tip prompted state and federal agents and local law enforcement officers to conduct surveillance at the airstrip and in the general vicinity in an effort to determine when the drug shipment was to arrive.

On June 10 a twin engine airplane landed at the Vickery airstrip and a number of men in camouflage clothing were observed unloading bales of suspected marijuana from it. The agents converged on the scene in an attempt to make arrests, but were unable to prevent the airplane from taking off and the men escaping. The single engine airplane also took off, but only after an exchange of gunfire between the airplane's occupants and the agents.

The smugglers left behind on the airstrip 37 bales (over 1800 pounds) of marijuana (apparently having origin in Bogata, Columbia) and a 1980 Ford containing an air-to-ground radio, a police band radio scanner, some camouflage clothing and a key to a motel room in Fitzgerald. It was later discovered that appellant Thompson had rented the car and appellant Keen had been staying in the motel room. Some four hours after the gun battle at the airstrip, Thompson was found on his front lawn in Stuart, Florida, wearing camouflage clothing and suffering from a gunshot wound. Stuart is approximately 2 1/2 hours by air from Fitzgerald.

Appellants were indicted in September, 1980. Of the other two indicted along with them, one died prior to trial and the other, William L. Brock, was severed from appellants because he was granted federal use immunity to testify against them. Appellants retained Phillip G. Butler, a Florida attorney, who appeared for them pro hac vice.

Appellants were tried together in October, 1981. Their principal defense strategy was that of individual and independent alibi. They were, however, found guilty by the jury. The trial court sentenced each of them to ten years and fined them each $25,000.00. After conducting two hearings, the court denied appellants' motions for new trial. Appellant Keen asserts five enumerations of error on this appeal and appellant Thompson asserts nine, five of which essentially duplicate Keen's.

1. The first contention raised by both appellants is that they were denied their constitutional right to effective assistance of counsel. They base their contention primarily on an alleged conflict of interest on the part of their trial attorney, Phillip Butler, in defending both of them at the joint trial. They further assert that their right to effective assistance of counsel was violated because the trial court denied them the opportunity to have a member of the Georgia Bar available to assist in their defense.

The basic legal parameters of the attorney/client conflict of interest issue in a criminal setting are set out in three landmark decisions by the United States Supreme Court. It is a fundamental principle that the Sixth Amendment guarantee of effective assistance of counsel includes the right of an accused to be represented by an attorney free of any conflicts of interest. Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 464-465, 457, 86 L.Ed. 680 (1942). There is a presumptive conflict of interest when one attorney is required to represent multiple defendants over their objection. Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1180, 55 L.Ed. 426 (1978). However, if the defendants do not object to the multiple representation by the attorney until after trial, there is no benefit of a presumption and the defendants must show that an actual conflict of interest existed which impaired their attorney's performance on their behalf. Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 1717, 64 L.Ed. 333 (1980). Thus, we must initially determine whether appellants' objection to Mr. Butler's representation of both of them was made known to the court prior to, during or after trial.

The first indication in the record of any objection appears in the trial transcript. During a recess from the individual voir dire, Mr. Butler stated, for the express purpose of perfecting the record, the substance of his conversation with the trial judge in chambers that morning before the trial commenced. The purpose of the in-chambers meeting was for Mr. Butler, on behalf of appellant Thompson, to move for a continuance in order for Thompson to retain another attorney. The grounds asserted were that Thompson allegedly had thought that Emory Walters, a distinguished local attorney, was going to assist in his defense at the trial and that he had only learned that Mr. Walters would not do so within the week before trial. However, we find this assertion lacking credibility. Mr. Walters was representing Brock, who was a state's witness against both Thompson and Keen. This was known by all concerned for at least a month before trial. Moreover, if appellants were as concerned about attorney/client conflicts of interest as they assert, it is inconceivable that the obvious conflict of interest between themselves and Mr. Walters would have escaped them.

We move on to Thompson's expressed desire for another attorney. We use the term "another," meaning additional, as opposed to "an other," meaning substitute, because this is how it was transcribed and because it is more fitting with the entire substance of Mr. Butler's statement for the record. We also set aside our inclination to see this eleventh hour move to get another attorney as a delay tactic because the denial of the motion for continuance is not directly at issue at this point. The issue is whether the substance of the motion put the trial court on notice that appellants, or at least appellant Thompson, were objecting to Mr. Butler's dual representation. We conclude that it did not. The record gives no indication that appellants even perceived any conflict of interest with Mr. Butler then. On the contrary, the record indicates that appellants intended to keep Mr. Butler as their attorney of record and they, or at least Thompson, were seeking time to get an additional attorney to assist Mr. Butler in their defense at trial. (In that regard, we find no abuse of discretion by the trial court in refusing to entertain the dilatory motion. See Scott v. State, 151 Ga.App. 840(1), 262 S.E.2d 198 (1979); McLendon v. State, 123 Ga.App. 290(2), 180 S.E.2d 567 (1971).) Under these circumstances, the court had no reason to presume or even suspect a conflict of interest existed. See Cuyler v. Sullivan, 446 U.S. at 346, 347. Therefore, we conclude that Mr. Butler's representation of both appellants was not over their objection. The burden thus is upon appellants to demonstrate to this court that an actual conflict existed which impaired their attorney's performance. Glasser v. United States, 315 U.S. at 70, 76, 62 S.Ct. at 464, 467; see also Barnes v. State, 160 Ga.App. 232, 286 S.E.2d 519 (1981).

Appellants rely in large part upon the testimony of Mr. Butler at the motion for new trial hearing to establish their claim of actual conflict. He testified that he provided ineffective assistance to each appellant because he was hindered by his role as attorney for both of them at the joint trial. For the reasons set forth below, we find this testimony unpersuasive.

It is axiomatic that the Sixth Amendment right to effective assistance of counsel was included in the Constitution to protect criminal defendants from having to face their accusers without the benefit of learned advocates for their defense. It was manifestly not intended as a last ditch defense ploy for defense attorneys. When an appellant can establish that his attorney was laboring under a conflict of interest while conducting his defense, his conviction must be reversed. 446 U.S. at 349, 100 S.Ct. at 1718; 315 U.S. at 76, 62 S.Ct. at 467. Where, however, an appellant relies on that same attorney to provide the evidence of a conflict, as is being done here, we are inherently suspicious.

Our suspicion is grounded upon the attorney's apparent disregard of legal ethics, which does much to destroy his credibility. If we were to take the attorney's testimony that he represented his two clients while under a conflict of interest as being true, that testimony would evince a variety of violations of the code of ethics, particularly the duty of loyalty to his client(s). See, e.g., ABA Code of Professional Responsibility, EC 5-14, EC 5-15, EC 5-16, EC 5-17, EC 5-19, DR 5-105, EC 9-2, EC 9-4 and EC 9-6. ¹ See also 446 U.S. at 346 n. 11. Conversely, if we were to disbelieve the attorney's testimony, that testimony would evince other ethical violations, particularly the duty of honesty and candor to the court. See ABA Code of Professional Responsibility, EC 7-1, EC 7-19, EC 7-26, EC 7-36 and EC 7-39; DR 7-102(A)(4)-(8). In short, we find the testimony of Phillip Butler at the ...