Littlejohn v. State, 90-KA-0584

• Decision Date: 15 January 1992
• Docket Number: No. 90-KA-0584,90-KA-0584
• Citation: 593 So.2d 20
• Parties: Deborah LITTLEJOHN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 20

593 So.2d 20

Deborah LITTLEJOHN v. STATE of Mississippi.

No. 90-KA-0584.

Supreme Court of Mississippi.

Jan. 15, 1992.

Richard B. Lewis, Chapman Lewis & Swan, Clarksdale, for appellant.

Mike C. Moore, Atty. Gen., Jackson, Ellen Y. Dale, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and BANKS and McRAE, JJ.

HAWKINS, Presiding Justice, for the COURT:

Deborah Littlejohn has appealed her conviction of conspiracy to distribute cocaine in the circuit court of the Second Judicial District of Bolivar County. Because the attorney who represented her was also counsel for the State's main witness in the trial against her for the same offense, we find an irreparable conflict of interest and consequent violation of Littlejohn's Sixth Amendment right to the effective assistance of counsel and reverse.

FACTS

Johnnie Walls is a practicing attorney in Greenville, acting through the professional association of "Walls Law Firm." On June 24, 1989, Deborah M. Littlejohn, for a fee of $5,000, employed him to represent her on a drug charge. She signed a two-page, single-spaced form employment contract. Paragraph 4 on the second page begins with the typed language "Additional provisions are:", and there is then added the following penned provision client understands that attorney shall make a determination as to whether a conflict exists w/Jeffrey Thomas. If there is a conflict, further representation will be determined.

On October 20, 1989, Jeffery Thomas, accompanied and represented by Johnnie Walls, appeared before the circuit court upon an information charging him with conspiracy to transfer and deliver a controlled substance. ¹

At this hearing Thomas and his attorney, Walls, announced that he wished to plead guilty to the criminal information. He was advised by the court that the maximum sentence was twenty years imprisonment and a fine of $500,000.

The hearing transcript also contains the following colloquy:

BY THE COURT:

Mrs. Beckett, does the State have a recommendation it wishes to make as to the sentence to be imposed on this plea of guilty?

BY MRS. BECKETT:

Yes, Your Honor, the recommendation is that Mr. Thomas be sentenced to a term of eight years under the custody and supervision of the Mississippi Department of Corrections, with four years suspended after the defendant has served four years. And Mr. Thomas has also agreed to testify truthfully in any subsequent proceeding about any personal knowledge that he has.

Upon his plea, the court found Thomas guilty. Then, at the request of Walls, a presentence investigation and report was ordered, and sentence was deferred.

Thereafter, on January 24, 1990, the court conducted a sentencing hearing. At this hearing it developed that Thomas was married and had five dependents. He also had finished college. He had been in the military service and had a kidney replacement which required highly-skilled medical attention. The court sentenced Thomas to five years imprisonment, and suspended the sentence.

In count one of a four-count indictment, Deborah Littlejohn, William T. Burroughs, III, Sam Joseph Rogers, and Kathleen Ann Rogers were indicted on October 25, 1989, by the grand jury of the Second Judicial District of Bolivar County for conspiracy to sell or distribute cocaine in violation of Miss.Code Ann. Sec. 41-29-115. Count two charged Burroughs with the felonious possession of cocaine; count three charged Littlejohn with the felonious possession of cocaine; and count four charged the two Rogers with the felonious possession of cocaine, all in violation of Miss.Code Ann. Sec. 41-29-115(a)(4). Count one for the conspiracy was the same offense to which Thomas had pleaded guilty on October 20.

Burroughs and the two Rogers pleaded guilty to the indictment and Littlejohn's case was brought to trial May 17, 1990. She was represented by Walls. Burroughs, Sam Rogers and Thomas appeared and testified as witnesses for the State.

Prior to trial the court ruled that a search of Littlejohn's house and a confession Burroughs, who operated a pawn shop and a bail bond business in Shelby, testified he was the "hub" man in the agreement the five had to sell cocaine. He furnished the money to Thomas who went to a cocaine supplier and returned with the drug. In turn Burroughs would deliver the cocaine to Littlejohn to sell. The two Rogers were radio dispatchers in the Shelby police department, who passed along messages as needed. Burroughs also operated a catering service, and had been engaged to furnish barbecue at the Cleveland Country Club on June 3, 1989.

given by her were illegal, and the State dismissed count three of the indictment charging Littlejohn with possession. Her trial was confined to count one, conspiracy with the others to sell and distribute cocaine.

On Friday, June 2, 1989, he gave Thomas $1,800 to purchase cocaine, but because he was not going to be in Shelby the next day, he told him to deliver the cocaine to Littlejohn directly.

On Saturday, June 3, Burroughs received a telephone call at the Cleveland Country Club. Sam Rogers told him that he was at Littlejohn's house and that Thomas had brought an oil base cocaine, which they could not use. He then drove to Littlejohn's house and gave Rogers and Littlejohn $400 with which to pay Thomas for some more cocaine, and after this transaction returned to Cleveland.

Burroughs was arrested that day.

On cross-examination Walls brought out that as part of his bargain with the State when he pleaded guilty Burroughs had agreed to testify for the State.

Rogers, a radio operator at the Shelby police department, corroborated Burroughs's testimony as to the agreement between the conspirators. When he got off work at four on that Saturday afternoon, he went to Littlejohn's house, who told him that Thomas had delivered the wrong kind of cocaine and that she needed to get in touch with him. He thereupon telephoned Burroughs, who came to Littlejohn's house. There Burroughs gave him $400, and he added $100 of his own. Burroughs had given Littlejohn the telephone number of Thomas, and Littlejohn telephoned Thomas that he had brought the wrong cocaine.

On cross-examination Walls asked Rogers if he had not pleaded guilty and made a plea bargain agreement with the State to testify as a witness for the State against Littlejohn, and brought out that he had.

Thomas testified that Burroughs on Friday, June 2, gave him $1,800 with which to purchase cocaine, and that he delivered cocaine to Littlejohn on Saturday afternoon at the hospital where she worked. She telephoned him at his home in Clarksdale around 6:30 p.m. that he had brought the wrong kind. He called her back later and told her that he had located some more cocaine, and then drove to her home in Shelby where she gave him $900 or $1,000. He left and bought another supply of cocaine, which he delivered to her around 8:00-8:30 that night.

In a three and a half-page, double-spaced cross-examination of Thomas, Walls asked him if he had pleaded guilty, but he did not ask him if part of his plea agreement was to testify against Littlejohn. On re-direct examination, over Walls' objection, the State asked Thomas who was his attorney when he pleaded guilty, and he replied, "Attorney Walls."

Littlejohn did not testify.

The jury found Littlejohn guilty, and she was sentenced to ten years imprisonment with five years suspended. Littlejohn has appealed.

LAW

Under our system of jurisprudence, if a lawyer is not one hundred percent loyal to his client, he flunks.

The right "to have the Assistance of Counsel for his defense" guaranteed by the Sixth Amendment has been construed by the U.S. Supreme Court to mean "the right to the effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970); Strickland v. Washington, 466 While the "effective assistance of counsel" addressed in most of the cases involves competency of counsel in which all kinds of scores may be given, there are no such "gradations" in cases in which defense counsel has an actual conflict of interest between co-defendants. Alvarez v. U.S., 580 F.2d 1251, 1256 (5th Cir.1978). Competency of defense counsel is not then the issue; loyalty of counsel is. And when the reviewing court concludes that the defense lawyer in fact had "an actual conflict of interest," it does not "indulge in nice calculations as to the amount of prejudice attributable to the conflict. The conflict itself demonstrates a denial of the right to have the effective assistance of counsel." Glasser v. U.S., 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942); Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, 347 (1980).

U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984); Merritt v. State, 517 So.2d 517 (Miss.1987). "An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair." Strickland, 466 U.S. at 685, 104 S.Ct. at 2052, 80 L.Ed.2d at 692 (emphasis added).

Moreover, undivided loyalty of defense counsel is essential to the due process guarantee of the Fifth Amendment. Alvarez, 580 F.2d at 1256; Porter v. U.S., 298 F.2d 461, 464 (5th Cir.1962).

From the record we must conclude that there was an irreparable conflict of interest between Thomas and Littlejohn, and that Walls' attempted representation of them both denied Littlejohn the effective assistance of legal counsel vouchsafed her by the 6th Amendment to the U.S. Constitution.

The testimony of Thomas was the centerpole of the State's case against Littlejohn on the conspiracy charge. Without it the State's case would have been much weaker.

Littlejohn employed Walls as her attorney on June 4, 1989.

The State could not have proceeded against Thomas by a criminal information without his being represented by counsel and under oath waiving an indictment by a grand jury....