People v. Davis

• Decision Date: 21 December 1979
• Citation: 72 A.D.2d 69,423 N.Y.S.2d 98
• Parties: PEOPLE of the State of New York, Respondent, v. John L. DAVIS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 98

423 N.Y.S.2d 98

72 A.D.2d 69

PEOPLE of the State of New York, Respondent, v. John L. DAVIS, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 21, 1979.

Fiesinger, Rose & Fiesinger, Little Falls, for appellant (George Fiesinger, Little Falls, of counsel).

Richard D. Enders, Utica, for respondent (Michael Daley, Utica, of counsel).

Before HANCOCK, J. P., and SCHNEPP, CALLAHAN, DOERR and MOULE, JJ.

CALLAHAN, Justice.

The matter before us, pursuant to CPL § 460.15, arises from an order of Cardamone, J., certifying a question of law or fact which ought to be reviewed by this Court. The issue presented for our determination is whether the defendant, John Davis, was deprived of the effective assistance of counsel because the same court-appointed attorney represented both him and a codefendant at trial.

Defendant Davis and two codefendants, Charles Streiff and Richard Payne, each gave written statements implicating himself and his codefendants in the strangulation death of Martha Kirk. They were jointly charged in a three count indictment alleging that, while acting together and in concert and each being the accomplice of the other, (1) they attempted to commit the crime of Rape in the First Degree and in the course of and in furtherance of such crime, caused the death; (2) they recklessly caused the death; and (3) they with criminal negligence caused the death.

Streiff was represented by retained counsel while Davis and Payne were jointly represented by the same court-appointed counsel from the Public Defender's Office. Only Streiff moved for a severance and a separate trial which was denied and a joint trial held. At a Huntley hearing prior to trial, the court found the statements had been made freely and voluntarily and in accordance with defendant's constitutional rights. After redacting certain portions of each statement that implicated the other defendants, it ruled that they were admissible on trial. Each defendant testified at trial denying any involvement in the crime and claimed that the statements had been coerced. The jury convicted all three defendants of felony murder under the first count of the indictment. That judgment was affirmed on appeal to this Court (People v. Streiff, 41 A.D.2d 259, 342 N.Y.S.2d 543). On that appeal, as well as on the subsequent appeal to the Court of Appeals, Davis and Payne were represented by the same court-appointed counsel. The Court of Appeals affirmed the convictions of Davis and Payne, reversed the conviction of Streiff and ordered a new trial for him based upon a finding that the trial court was in error in denying Streiff's motion for separate trial (People v. Payne, 35 N.Y.2d 22, 358 N.Y.S.2d 701, 315 N.E.2d 762). Upon retrial, Streiff was convicted of criminally negligent homicide.

Defendant Davis' family retained an attorney who commenced proceedings in the nature of coram nobis (CPL 440.10) to vacate defendant's conviction on the ground that he was denied effective assistance of counsel by reason of the same court-assigned attorney representing both defendant and his codefendant Payne. The trial court in denying defendant's motion expressed "(t)he hope that an allowance of appeal will be granted in this case because of the serious constitutional questions involved and a resolution thereof may serve as a guide to our trial courts in post-conviction applications."

The Sixth and Fourteenth Amendments guarantee the right to effective assistance of counsel (Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158). Such right is guaranteed by both the Federal and State and Constitutions and by statute in New York (U.S.Const., 6th Amdt. and 14th Amdt.; N.Y.Const., art. I, § 6; CPL 210.15, subd. 2). Effective representation requires counsel's undivided loyalty to the client. Undivided loyalty of appointed counsel to client is essential to due process (MacKenna v. Ellis, 5 Cir., 280 F.2d 592). It is this obligation of loyalty which is at issue when an attorney undertakes to represent two or more criminal defendants in the same or related proceedings. Appointment by the trial court of one attorney to represent codefendants when it was aware of possibly inconsistent interests was an infringement of the defendant's fundamental right to the effective assistance of counsel (Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680). Whenever a trial court improperly requires joint representation by one appointed attorney, over timely objection there is a violation of the constitutional guarantee of effective assistance of counsel which requires reversal (Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 55 L.Ed.2d 426). Thus, had there been timely objection in the instant case, reversal would have been automatic. However, defendant's court-appointed attorney made no such objection.

Joint representation of multiple defendants is not per se a denial of the effective assistance of counsel (People v. Gonzalez, 30 N.Y.2d 28, 34, 330 N.Y.S.2d 54, 55, 280 N.E.2d 882, 886 cert. den. 409 U.S. 859, 93 S.Ct. 145, 34 L.Ed.2d 105; Holloway v. Arkansas, supra, 435 U.S. at 482, 98 S.Ct. 1173). The right of a defendant to receive effective legal representation, however, may be substantially impaired if one lawyer represents the conflicting interests of a number of defendants (People v. Gomberg, 38 N.Y.2d 307, 379 N.Y.S.2d 769, 342 N.E.2d 550). This imposes a weighty responsibility upon the trial court of determining whether defendant's decision to proceed with one attorney is an informed decision (People v. Gomberg,supra at 313, 379 N.Y.S.2d at 775, 342 N.E.2d at 554). It is imperative that proper safeguards be utilized to insure that the defendant is afforded adequate legal representation in a situation where defendants are jointly represented by the same attorney at trial. It is incumbent upon the trial judge to ascertain on the record whether each defendant is cognizant of the potential risk inherent in the simultaneous representation of codefendants at trial where a potential conflict exists between the defenses sought to be established by each defendant (People v. Macerola, 47 N.Y.2d 257, 417 N.Y.S.2d 908, 391 N.E.2d 990).

Defendant asserts that there was a conflict of interest in the same court-assigned attorney representing both him and his codefendant Payne and that this conflict of interest manifested itself in the pretrial stages, during the trial, and during the appellate proceedings. The record supports defendant's assertions.

Each of the defendants signed a statement admitting some degree of involvement in the disappearance and death of Martha Kirk and implicating the others. Although the statements are in substantial agreement that the defendants, upon seeing Martha Kirk in her car, drunk and unconscious, removed her to their vehicle and proceeded to a secluded area, there is some disagreement as to exactly what happened at that scene. The greatest disparity is found in the statements of Streiff and codefendant Richard Payne (People v. Payne, 35 N.Y.2d 22, 25, 358 N.Y.S.2d 701, 703, 315 N.E.2d 762, 764), although there is also disparity to be found in the...