Robinson v. Parratt
| Decision Date | 08 December 1976 |
| Docket Number | No. 76-1526,76-1526 |
| Citation | 546 F.2d 764 |
| Parties | Grover ROBINSON, Appellee, v. Robert F. PARRATT, Warden, Nebraska Penal and Correctional Complex, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Terry R. Schaaf, Asst. Atty. Gen. (argued), Paul L. Douglas, Atty. Gen., Lincoln, Neb., on brief, for appellant.
J. William Gallup, Omaha, Neb. (argued) and on brief, for appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, and BRIGHT and WEBSTER, Circuit Judges.
Grover Robinson, a Nebraska state prisoner, seeks habeas corpus relief from his convictions on counts of burglary and possession of burglary tools, and the concurrent sentences of 20 years imposed pursuant to those convictions. The federal district court (Chief Judge Warren K. Urbom) granted the writ, and the respondent, Robert F. Parratt, as warden of the Nebraska Penal and Correctional Complex, brings this appeal. We affirm.
The record discloses that Robinson and two codefendants, William Micek and William O'Kelley, were tried together. A single attorney, J. William Gallup of Omaha, Nebraska, represented both Robinson and Micek, while O'Kelley was represented separately. On the eve of trial, and after a jury had been impaneled, the attorney representing Robinson and Micek sought, on behalf of Micek, to sever the joint prosecution against the two men on grounds that a conflict of interest had developed in the representation of his two clients which would deprive one or both defendants of effective assistance of counsel. The state trial court denied the motion and required that the trial proceed as scheduled. Attorney Gallup continued to represent both defendants. Following conviction, both Robinson and Micek appealed on several grounds, including the claim that each had been denied the effective assistance of counsel guaranteed by the sixth and fourteenth amendments. The Nebraska Supreme Court affirmed the convictions. State v. Micek, 193 Neb. 379, 227 N.W.2d 409 (1975). See also State v. O'Kelley, 193 Neb. 390, 227 N.W.2d 415 (1975). Thereafter Robinson and Micek filed separate habeas corpus petitions in federal court renewing the sixth amendment argument and other claims. Judge Urbom granted relief to Robinson alone, finding that Robinson was denied effective assistance of counsel. Robinson v. Parratt, Warden, 421 F.Supp. 664 (D.Neb.1976).
The facts, which are not in dispute for purposes of this appeal, disclose that Nebraska police in the early morning hours of February 4, 1974, made an investigatory stop on the streets of Irvington, Nebraska, of an automobile registered to Micek. Robinson, O'Kelley, and Micek occupied the automobile. The stop led to the discovery of a quantity of large cuts of beef which had been obtained in a burglary at a nearby restaurant. All occupants of the vehicle were then arrested and later charged with burglary and possession of burglary tools.
Robinson and Micek planned as a defense against the charges to rely on alibis supported by different witnesses. Shortly before trial, Micek's alibi vanished when his witness became unavailable or refused to testify. Since there was some evidence to support the inference that the crime had been committed by one man, the sudden elimination of Micek's alibi defense weakened Micek's defense while opening an opportunity for Robinson to support his defense by pointing the finger at Micek as the sole burglar.
At the opening of the trial and at various times during the proceeding, Gallup moved for a severance of the Micek case because Robinson's defense had become antagonistic to Micek's and, therefore, one attorney could not represent the two defendants jointly. After presenting testimony relating to Micek's absent alibi witness, counsel explained:
And my other client, Mr. Robinson, would like me to make the argument to the Jury that, conceivably, the burglar was Mr. Micek, and he was just an innocent passenger in the car.
I would be derelict to Mr. Robinson if I didn't make that argument and, at the same time, if I made the argument in the same trial, I would be derelict to Mr. Micek.
So, to protect myself and my two clients, I'm asking that we get a severance so I can give the proper attention to each defense. And at the present time, they are not compatible, and I am going to have a serious problem if I have to try them together because of this problem I have attempted to bring out on the record.
The state trial judge made it clear that the trial would continue:
THE COURT: Oh, it's almost three months now since the alleged offense took place and the charges were filed. I think the Defendant, Micek, has had ample opportunity to prepare himself for trial. And this witness' deposition could have been taken quite some time ago, had Mr. Micek himself been diligent, not just his counsel. There's a responsibility on the part of the Defendants.
We spent a long and difficult day Friday here of picking a Jury and had to set this special so that witnesses were available. The Defendants and their counsel knew for quite some time that it was going to come for special trial.
The Court has arranged it, and it's at the request of the Defendants that the Court is working today on a holiday, not at the convenience of the Court or the prosecution.
It would be far more convenient for the Court if the Court could have taken the holiday instead of having everybody down here, including the Court itself.
And, as I say, it was for the Defendants' convenience that this was done.
The Motion is overruled. We'll proceed to a consolodated (sic) trial. You may bring the Jury in.
Additionally, at the close of the Government's case, defense counsel called specific attention to his inability to properly defend Robinson, noting that the chief deputy county attorney had been advised of the problem and had recognized the conflict of interest. Attorney Gallup argued:
* * * (T)wo of the Defendants have alibis, the Defendant Micek does not have an alibi. Mr. Robinson wants me to stand up in front of the Jury and accuse Mr. Micek, which I can't ethically do. And I have a serious conflict there.
And I might state for the...
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U.S. v. Lawriw
...assistance of counsel when dual representation precluded him from asserting an independent defense. See, e. g., Robinson v. Parratt, 546 F.2d 764 (8th Cir. 1976), aff'g 421 F.Supp. 664 (D.Neb.1976). In that case the defenses of two jointly represented defendants had become antagonistic to e......
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U.S. v. Bull
...1198; United States v. Maryland (5th Cir. 1973) 479 F.2d 566, 568; Robinson v. Parratt (D.Neb.1976) 421 F.Supp. 664, 668-69, aff'd., 8th Cir., 546 F.2d 764. The judgment of the district court is accordingly AFFIRMED. 1 United States v. Worthington (5th Cir. 1977) 544 F.2d 1275, 1280, n. 3, ......
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Walker v. Garrington, Civ. A. No. 80-3710.
...reduce the potential for a divergence in co-defendants' interests. Id. 100 S.Ct. at 1717-1718; see, e. g., Robinson v. Parratt, 546 F.2d 764 (8th Cir. 1976); Bishop v. Parratt, 509 F.Supp. 1140, 1143 (D.C.Neb.1981); State v. Alexis, 21 Wash. App. 161, 584 P.2d 963, 967 (1978). Moreover, Mr.......
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State v. Alexis
...aware that one defendant's case might prejudice the case of the other, and separate counsel was indicated. See, e. g., Robinson v. Parratt, 546 F.2d 764 (8th Cir. 1976); United States v. Gaines, 529 F.2d 1038 (7th Cir. 1976). Where, as here, severance is indicated as a possibility in a crim......