Kiker v. State
| Decision Date | 17 February 2011 |
| Docket Number | No. 2008–CT–01341–SCT.,2008–CT–01341–SCT. |
| Parties | Julius Wesley KIKERv.STATE of Mississippi. |
| Court | Mississippi Supreme Court |
OPINION TEXT STARTS HERE
Percy Stanfield, Jackson, attorney for appellant.Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.EN BANC.
ON WRIT OF CERTIORARI
¶ 1. Julius Wesley Kiker was convicted by a jury of the March 6, 2002, murder of his wife, Renee Kiker, and sentenced to life imprisonment. The Court of Appeals was assigned his direct appeal and affirmed both his conviction and sentence. Kiker v. State (Kiker I), 919 So.2d 190 (Miss.Ct.App.2005). Two years later, a panel of this Court granted Kiker leave to proceed in the trial court on his post-conviction claim that his Sixth Amendment rights were violated due to his trial counsel's representation of a witness for the State. An evidentiary hearing was held in the George County Circuit Court, and the trial judge denied Kiker's petition. Kiker appealed the denial of his petition, and the Court of Appeals affirmed. Kiker v. State (Kiker II), 55 So.3d 1082 (Miss.Ct.App.2009). This Court granted Kiker's petition for writ of certiorari. Finding that Kiker's attorney had an actual conflict of interest, and that Kiker did not waive that conflict, we reverse the Court of Appeals' decision and the trial judge's denial of Kiker's petition for post-conviction relief.
¶ 2. On the evening of March 6, 2002, Kiker's mother called the George County Sheriff's Department to report that she could not get through to her son's home telephone. When a deputy sheriff arrived at Kiker's home, he found Kiker standing over his wife's dead body holding the instrument of her death, a firearm.
¶ 3. Kiker testified at trial, asserting that his wife's demise had resulted from an accident. Kiker said that they had been arguing when Renee came after him with a gun, threatening to kill him. According to Kiker, Renee was accidentally shot as they were struggling over the gun. It was undisputed that he and Renee had a tumultuous relationship, and evidence was adduced that each spouse had engaged in physical abuse of the other.
¶ 4. The only direct evidence to dispute Kiker's version of events came from Bobby Crawford, a jailhouse informant. Crawford testified that, while they were in jail together, Kiker had told him that he could no longer withstand his wife's mistreatment and had intentionally shot her in the head.
¶ 5. Kiker was represented at trial by two attorneys, Darryl Hurt, Sr., and Sidney Barnett. During Hurt's cross-examination of Crawford, Hurt asked Crawford whether he was under a criminal indictment. The prosecutor objected, arguing that pending criminal charges were not admissible for impeachment purposes under the Mississippi Rules of Evidence. The prosecutor further commented, “we were also made aware earlier of a concern of Mr. Barnett, the situation.” After a brief reply argument from Hurt, the prosecutor withdrew his objection, and the following exchange occurred, in the jury's presence:
Hurt: Are you presently under an indictment for a crime by the Grand Jury of this County?
Crawford: You'll have to ask my lawyer right there, Mr. Barnett. I am going to Drug Court rehab.
Hurt: I want you to answer my question.
Crawford: I'm answering it the best I can. I don't know it if [sic] was an indictment or not. I know I did four months on my sentence and I'm going to a drug rehab. I'm not an educated man.
Hurt: But I'm asking you a question. I'm not going to argue with you, sir. I'm merely asking you a question, and I would like for you to answer it. Have you been indicted by the George County Grand Jury for a crime?
Crawford: Yes, sir.
Hurt: And what is that crime for which you've been indicted?
Crawford: Manufacturing.
(Emphasis added.) Shortly thereafter, Hurt concluded his cross-examination of Crawford.
¶ 6. Beyond Crawford's in-court statement that Barnett was his attorney, nothing else appears in the record on direct appeal regarding Barnett's representation of both Kiker and Crawford. When Kiker testified in his defense, his attorneys did not ask him about the confession he allegedly had made to Crawford while the two were in jail. Crawford could not recall when he was in jail with Kiker, and, other than Crawford's testimony, the record does not indicate whether Crawford and Kiker were in fact incarcerated at the same time.
¶ 7. The same attorneys, Barnett and Hurt, represented Kiker on direct appeal. The case was assigned the Court of Appeals, which affirmed his conviction and sentence. Kiker I, 919 So.2d 190. As Kiker's attorney on direct appeal, Barnett served as Kiker's advocate until at least October 11, 2005, the date on which the Court of Appeals affirmed Kiker's conviction. Kiker I, 919 So.2d 190. Exactly two weeks later, Barnett was in the George County Circuit Court representing Crawford, a key witness against Kiker, on a guilty plea. Thus, Barnett's concurrent representation of Kiker and Crawford went on for years.
¶ 8. On November 8, 2007, a panel of this Court granted, in part, Kiker's application for leave to proceed in the trial court on the post-conviction issue of “whether Kiker's Sixth Amendment rights were violated due to his trial counsel's representation of a witness for the State.” An evidentiary hearing was held in the George County Circuit Court before the same judge who had presided over Kiker's trial.
¶ 9. At the post-conviction hearing, Kiker testified that Barnett had been appointed by the court to represent him “a couple of days after it happened,” and that Kiker's family had hired Hurt shortly thereafter. According to Kiker, he met with both attorneys several times before his trial and was told that Crawford would testify against him. However, Kiker was never told that Barnett also represented Crawford, and Kiker claimed that he first learned of this conflict when Crawford was on the witness stand. Kiker testified that had he been informed of Barnett's representation of Crawford, he would not have waived the conflict of interest and would have sought replacement counsel.
¶ 10. The State presented two witnesses at the post-conviction hearing: Lee Martin, the assistant attorney general who prosecuted Kiker's murder case, and Kevin Bradley, the assistant district attorney who handled the charges against Crawford. Martin testified that, shortly after Kiker's trial began, Barnett informed the prosecution and the trial judge that he was representing Crawford on pending, drug-related charges. While Martin agreed that Kiker should have been made aware of the conflict, neither he nor the trial judge had taken any action to ensure that Kiker was timely informed of this conflict. Martin testified that he did not know of any plea arrangement associated with Crawford's testifying against Kiker.
¶ 11. Bradley testified concerning the handling and disposition of the charges against Crawford, asserting that the plea deal offered to Crawford was not in exchange for his testimony against Kiker. Crawford was indicted on June 18, 2002, for possession of methamphetamine and possession of methamphetamine precursors. On December 3, 2002, a bench warrant for contempt was issued for Crawford, but the warrant was lifted on February 4, 2003, roughly eleven days after Kiker was indicted for murder. Crawford testified in Kiker's trial on July 31, 2003, and as demonstrated by his testimony, seemed confused about the nature and status of the charges against him and attempted to defer the question to his lawyer, Barnett. On October 20, 2003, less than two months after Kiker's trial, another bench warrant was issued for Crawford, but he was not arrested until July 19, 2005. On October 25, 2005, with Barnett as his attorney, Crawford pled guilty to both counts contained in the June 18, 2002, indictment and also pled guilty to failure to register as a sex offender. 1 Crawford received an eight-year sentence on each of the drug charges, with three years to serve, and five years on the failure-to-register charge, with two years to serve. The sentences for the drug charges were ordered to run consecutively, and the sentence for his failure to register was ordered to run concurrently with the other sentences, giving him a total of six years to serve. Crawford was ordered to be incarcerated in a facility separate from Kiker and from another man against whom he had provided incriminating testimony in a case unrelated to Kiker's.
¶ 12. The trial judge entered a written order denying Kiker's petition for post-conviction relief, finding that “there was not an actual conflict in existence at the time the State's witness Bobby Crawford, testified during the murder trial of Julius Wesley Kiker.” The judge also based his decision on findings that: Hurt was Crawford's lead attorney; the State did not offer a plea deal to Crawford in exchange for his testimony; Crawford was not Kiker's codefendant and was not involved in the murder of Renee Kiker; Crawford's testimony was not the “centerpole” of the State's case; and Kiker's attorneys were not deficient and provided effective assistance of counsel. The Court of Appeals agreed with the trial judge's reasoning and affirmed the denial of Kiker's petition. Kiker II, 55 So.3d 1082.
¶ 13. “In all criminal prosecutions, the accused shall enjoy the right ... to have Assistance of Counsel for his defence.” U.S. Const. amend. VI. See also Miss. Const. art. 3, § 26 () “[A]dept representation encompasses two broad principles: minimum competence and loyal assistance.” Armstrong v. State, 573 So.2d 1329, 1331 (Miss.1990) (citation omitted). Moreover, constitutional guarantees of due process of law require undivided loyalty of defense counsel. Littlejohn v. State, 593 So.2d 20, 23 (Miss.1992) ); U.S. v. Alvarez, 580 F.2d 1251,...
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