McConico v. State of Ala.

• Decision Date: 27 December 1990
• Docket Number: No. 90-7014,90-7014
• Citation: 919 F.2d 1543
• Parties: James McCONICO, Jr., Petitioner-Appellant, v. STATE OF ALABAMA, John E. Nagle, Respondents-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1543

919 F.2d 1543

James McCONICO, Jr., Petitioner-Appellant, v. STATE OF ALABAMA, John E. Nagle, Respondents-Appellees.

No. 90-7014.

United States Court of Appeals Eleventh Circuit.

Dec. 27, 1990.

David R. Arendall, Arendall & O'Kelley, Birmingham, Ala., for petitioner-appellant.

Beth Jackson Hughes, Asst. Atty. Gen., Montgomery, Ala., for respondents-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before POWELL ^*, Associate Justice, TJOFLAT, Chief Judge, and KRAVITCH, Circuit Judge.

KRAVITCH, Circuit Judge:

A defendant's lawyer, laboring under a conflict of interest, may deprive a defendant of the sixth amendment right to counsel during a criminal trial. The United States Supreme Court has stated that counsel is constitutionally ineffective if: 1) counsel faced an actual conflict of interest, and 2) that conflict "adversely affected" counsel's representation of the defendant. Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348, 100 S.Ct. 1708, 1719, 1718, 64 L.Ed.2d 333 (1980)); LoConte v. Dugger, 847 F.2d 745, 754 (11th Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386 (1988). James McConico Jr. appeals the denial of his petition for habeas corpus based on ineffective assistance of counsel due to a conflict of interest. After an evidentiary hearing, a federal magistrate found no actual conflict of interest and no adverse effect. The district court adopted the magistrate's findings and denied relief. We disagree with both findings. Therefore we reverse and remand for a new trial.

BACKGROUND

McConico was convicted of murder based on the shooting of Ricky Morton. The incident occurred May 23, 1983, and McConico was arrested May 26, 1983. McConico retained Fred Pickard as trial counsel for an agreed fee of $5,000, and Pickard represented him at the preliminary hearing June 20, 1983. In September or October 1983, Brenda McConico, appellant's wife, also hired Pickard to represent her to recover proceeds from the life insurance policy of Morton. Ricky Morton was Brenda McConico's brother, and it was unclear whether the policy proceeds were payable At McConico's jury trial on January 4-5, 1984, his primary argument was self-defense. Pickard was his lawyer, and McConico testified on his own behalf. Brenda McConico, although she had testified for the defense in the preliminary hearing, testified for the prosecution at trial and was cross-examined by Pickard. On January 5, 1984, appellant was convicted of murder in Jefferson County Circuit Court of Alabama and was sentenced to life imprisonment under the Alabama Habitual Felony Offender Act. Pickard withdrew from the case January 24, 1984.

to Brenda or to her other brother Rodney Morton. Brenda McConico and Rodney Morton agreed to split the proceeds, and on October 10, 1983 Maccabees Mutual Life Insurance Company agreed to pay them and their lawyers $20,000. Pickard received his check in November 1983.

On March 19, 1984, Brenda McConico and Rodney Morton signed a document releasing Maccabees from any liability arising out of the insurance claim and acknowledging the $20,000 payment on the insurance policy.

McConico's conviction was affirmed on direct appeal. McConico v. State, 458 So.2d 743 (Ala.Crim.App.1984). He then filed coram nobis petitions in the state court claiming ineffective assistance of counsel at trial based on conflict of interest and a petition for relief from conviction or sentence based on Temporary Rule 20 of the Ala.Rules of Crim.Pro. Both were denied, and the appeals were dismissed. On March 23, 1988, McConico filed a federal habeas petition based on ineffective assistance due to conflict of interest. ¹ After an evidentiary hearing, the magistrate issued a report and recommendation, and the federal judge entered the order denying relief.

To establish a violation of the sixth amendment a petitioner must show both counsel's actual conflict of interest and an adverse effect on counsel's representation. The district court's findings of fact will be reversed only if they are clearly erroneous. LoConte, 847 F.2d at 750. The district court's conclusion about constitutional ineffectiveness of counsel is a mixed question of law and fact, however, and will be reviewed independently on appeal. Id.; Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988); Oliver v. Wainwright, 782 F.2d 1521, 1524 (11th Cir.), cert. denied, 479 U.S. 914, 107 S.Ct. 313, 93 L.Ed.2d 287 (1986).

ACTUAL CONFLICT

Appellant argues that the actual conflict was Pickard's simultaneous representation of him in his criminal trial and of Brenda McConico in her insurance claim. Appellant contends that Pickard necessarily faced divided loyalties when he cross-examined his client Brenda McConico at appellant's trial, especially as the matters were so closely related. The insurance policy contained an exclusion clause that denied payment if the policy holder died from "Participation in, or as a result of having participated in the committing of an assault or felony." At the criminal trial, Pickard argued that McConico shot in self-defense and that Morton was the aggressor in the May 23 incident that resulted in his death. In order to preserve the insurance proceeds payable upon Morton's death to Pickard's client Brenda McConico and to avoid the exclusion clause of the policy, however, Pickard was required to take the position in the insurance claim that Morton was not the aggressor in the incident. This position negated McConico's claim of self-defense. Appellant argues that this structural conflict tempered Pickard's representation during the criminal proceedings and that Pickard never raised the possibility either with him or the state court.

The state argues that Pickard did not represent appellant and Brenda at the same time. Full payment of the insurance claim occurred in fall 1983, well before the beginning of McConico's criminal trial in January 1984. Thus, according to the state, Pickard could not have been torn by divided loyalties because the insurance company never attempted to recoup payments under the exclusion clause of the policy. The state further argues that Pickard's full defense of appellant, including his cross-examination of Brenda, showed no indication that he was subject to conflicting interests.

In assessing whether a conflict exists, this court must be convinced that the conflict is actual, not merely hypothetical or speculative. Lightbourne, 829 F.2d at 1023; Smith v. White, 815 F.2d 1401, 1404-05 (11th Cir.), cert. denied, 484 U.S. 863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987); Oliver v. Wainwright, 782 F.2d at 1525; Stevenson v. Newsome, 774 F.2d 1558, 1561-62 (11th Cir.1985), cert. denied, 475 U.S. 1089, 106 S.Ct. 1476, 89 L.Ed.2d 731 (1986). Appellant must show "inconsistent interests and must demonstrate that the attorney made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other." Smith v. White, 815 F.2d at 1404 (11th Cir.1987) (quoting Barham v. United States, 724 F.2d 1529, 1532 (11th Cir.) (citations omitted), cert. denied, 467 U.S. 1230, 104 S.Ct. 2687, 81 L.Ed.2d 882 (1984)). Cf., Sullivan v. Cuyler, 723 F.2d 1077, 1086 (3d Cir.1983) ("Actual conflict of interest is evidenced if, during the course of the representation, the defendants' interests diverge with respect to a material factual or legal issue or to a course of action."). ² A conflict may arise from a lawyer's simultaneous or successive representation of adverse interests. Whether the representation is simultaneous or successive does not conclusively determine the question of actual conflict, although it is generally easier to prove actual conflict arising from simultaneous representation than from successive representation. Smith v. White, 815 F.2d at 1405.

In this case, the record shows that Pickard simultaneously represented conflicting interests. McConico retained Pickard for his criminal defense in May 1983. Pickard represented him at his initial appearance June 3, 1983 and handled his plea of not guilty at the preliminary hearing June 20, 1983. Pickard represented him at the criminal trial January 4-5, 1984 and filed the notice of appeal and a motion for new trial before withdrawing from the case January 24, 1984. Pickard also represented Brenda McConico in the insurance matter during much of that same period. Although the record is unclear about when Brenda retained Pickard to recover the insurance proceeds, it cannot be later than October 10, 1983, when the insurance company agreed to pay Brenda and Rodney Morton. The two beneficiaries and their lawyers ³ may have been paid shortly thereafter, but Pickard's representation of Brenda could not have ended until the rights of the parties had been finalized in the form of the release dated March 19, 1984. Regardless of the payment schedules involved, there were at least three months of overlapping representation during which Pickard represented both Brenda and appellant, and those were the critical months of appellant's At appellant's criminal trial, Pickard was forced to cross-examine Brenda McConico, his own client, who was testifying for the state against her husband. This is a situation of inherently divided loyalty because the success of one client depends on discrediting another. See Lightbourne, 829 F.2d at 1023 ("An attorney who cross-examines a former client inherently encounters divided loyalties.") (citing Porter v. Wainwright, 805 F.2d 930, 939 (11th Cir.1986), cert. denied, 482 U.S. 918, 107 S.Ct. 3195, 96 L.Ed.2d 682 (1987); Stephens v. United States, 595 F.2d 1066, 1070 (5th Cir.1979)). ⁴ As we stated in a case involving similar facts:

criminal trial. We conclude, therefore, that the...