Lamb v. State, S96A0982
| Decision Date | 15 July 1996 |
| Docket Number | No. S96A0982,S96A0982 |
| Parties | LAMB v. The STATE. |
| Court | Georgia Supreme Court |
David Victor Weber, Martinez, for Lamb.
William C. Davison, Asst. Dist. Atty., Office of the Dist. Atty., Daniel J. Craig, Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Beth Attaway, Asst. Atty. Gen., Dept. of Law, Atlanta, for the State.
Although we affirmed defendant's conviction for felony murder and possession of a firearm during the commission of a crime, Lamb v. State, 263 Ga. 118, 428 S.E.2d 349 (1993), we remanded for a hearing and findings on defendant's claims that he received ineffective assistance of both trial and appellate counsel. Following the hearing, the trial court concluded that the representation of defendant did not fall below an objective standard of reasonableness. Defendant appeals, asserting, primarily, that both his trial counsel and his appellate counsel were ineffective because they were not "conflict free."
The indictment charged defendant, his brother, and Bobby Boysworth, Jr., with malice murder, felony murder and possession of a firearm during the commission of a crime. Danny L. Durham was appointed to represent defendant at trial, and another attorney was appointed to represent defendant's brother. 1 Durham had been retained by defendant's brother to represent him on an unrelated aggravated assault charge. Richard Ingram, an associate in Durham's firm, had been retained by defendant's brother to represent him on unrelated drug charges. Durham's and Ingram's representation of defendant's brother ended approximately six months before this case was brought to trial. However, it appears that Durham represented defendant and defendant's brother, and Ingram also represented defendant's brother, while charges were pending against defendant.
Durham testified on remand that he could not foresee a potential conflict resulting from his or Ingram's representation of defendant's brother because the charges were unrelated, and the brothers were of one mind in their approach to this case. Accordingly, Durham did not discuss any potential conflict with defendant; and he did not inform defendant that he might wish to obtain other counsel.
After conviction, Charles R. Sheppard was appointed to represent defendant on appeal. Soon thereafter, Sheppard accepted a position in the office of the district attorney prosecuting this case. Sheppard mailed his appellate brief the day before he started working in the district attorney's office. Another attorney was subsequently appointed to represent defendant on appeal and, after this Court rendered its decision, that attorney filed a motion for reconsideration raising, inter alia, ineffective assistance of counsel issues.
1. In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court considered the problem of an attorney's ineffectiveness due to conflict of interest in the representation of multiple defendants and ruled that "[i]n order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance." Id. at 348, 100 S.Ct. at 1718. The Court added that "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." Id. at 349-50, 100 S.Ct. at 1719. Nevertheless, the conflict must be palpable and have a substantial basis in fact. A theoretical or speculative conflict will not impugn a conviction which is supported by competent evidence. Hamilton v. State, 255 Ga. 468, 470, 339 S.E.2d 707 (1986). The test is whether the representation deprived either defendant of the undivided loyalty of counsel, i.e., did counsel slight one defendant to favor the other? Davis v. State, 129 Ga.App. 796, 799, 201 S.E.2d 345 (1973).
Although Durham and Ingram simultaneously represented defendant and his brother, neither client was deprived of the undivided loyalty of trial counsel. After all, the brothers presented a unified defense. Defendant did not attempt to inculpate his brother, and his brother did not attempt to inculpate him. Compare Meyers v. State, 265 Ga. 149, 454 S.E.2d 490 (1995) with Barnes v. State, 160 Ga.App. 232, 286 S.E.2d 519 (1981). Thus, defendant has failed to demonstrate an actual conflict on the part of trial counsel. 2
Likewise, defendant has failed to demonstrate an actual conflict on the part of appellate counsel. Defendant's claim that Sheppard was not "conflict free" because he sought employment in the district attorney's office cannot withstand scrutiny because there is no assertion that Sheppard's representation was deficient in any respect. An actual conflict does not arise simply because an attorney seeks employment with an adversary's firm. See generally Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) ().
Certainly, a conflict of interest would arise if a defense attorney were to "switch sides" and prosecute his former client. Compare Frazier v....
To continue reading
Request your trial
-
Franks v. State
...560 S.E.2d 688 (2002) (court appointed lawyer who solicits fee to obtain better result commits ethical violation). 26. Lamb v. State, 267 Ga. 41, 42, 472 S.E.2d 683 (1996), quoting Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 27. Lamb, 267 Ga. at 42, 472 S.E.2d 683.......
-
Pruitt v. State, S98P1962.
...246 Ga. 90, 270 S.E.2d 185 (1980). 46. Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Lamb v. State, 267 Ga. 41, 42(1), 472 S.E.2d 683 (1996). 47. Lamb, 267 Ga. at 42-43, 472 S.E.2d 48. See Chapel, 264 Ga. 267, 443 S.E.2d 271 (attorney disqualified from repres......
-
Tolbert v. State
...U.S. at 350(IV)(C), 100 S.Ct. 1708 ("the possibility of conflict is insufficient to impugn a criminal conviction"); Lamb v. State, 267 Ga. 41, 42(1), 472 S.E.2d 683 (1996) ( "[T]he conflict must be palpable and have a substantial basis in fact. A theoretical or speculative conflict will not......
-
Mize v. State
..."A theoretical or speculative conflict will not impugn a conviction which is supported by competent evidence." Lamb v. State, 267 Ga. 41(1), 472 S.E.2d 683 (1996). We find no 17. The death penalty in this case was not imposed under the influence of passion, prejudice or other arbitrary fact......