Ross v. Heyne

• Decision Date: 10 December 1980
• Docket Number: 80-1394,Nos. 80-1318,s. 80-1318
• Citation: 638 F.2d 979
• Parties: Magnolia ROSS, Petitioner-Appellee-Appellant, v. Robert HEYNE and Theodore L. Sendak, Respondents-Appellants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 979

638 F.2d 979

Magnolia ROSS, Petitioner-Appellee-Appellant, v. Robert HEYNE and Theodore L. Sendak, Respondents-Appellants-Appellees.

Nos. 80-1318, 80-1394.

United States Court of Appeals, Seventh Circuit.

Dec. 10, 1980.

David Capp, Merrillville, Ind., for Ross.

David L. Steiner, Asst. Atty. Gen., Indianapolis, Ind., for Heyne et al.

Before SPRECHER, Circuit Judge, WISDOM, Senior Circuit Judge, ^* and BAUER, Circuit Judge.

BAUER, Circuit Judge.

After exhausting her state court remedies, petitioner Magnolia Ross filed a petition for a writ of habeas corpus in the District Court for the Northern District of Indiana. She claimed that she was denied due process when the state knowingly used false testimony and that she was denied the effective assistance of counsel. The district court granted Ross' petition on the ground that she had been denied due process, but found that she was not denied the effective assistance of counsel. Ross v. Heyne, 483 F.Supp. 798 (N.D.Ind.1980).

The state appeals from the district court grant of habeas relief on the due process ground, and Ross cross-appeals from the denial of her ineffective assistance of counsel claim. We affirm the district court's grant of habeas relief on Ross' due process claim and reverse its finding that she was not denied the effective assistance of counsel.

I

Petitioner Ross and five others, Robert Spencer, Floyd Fayson, Edward Gillespie, Leroy Hemphill, and Beatrice Ivy, were accused of assaulting and robbing Father Peter Bankerovich. They were all charged with inflicting injury in the perpetration of a robbery and robbery. The trial court appointed James C. Kimbrough, now Judge of the Superior Court, Lake County, Indiana, to represent Ross and Fayson. Co-defendants Spencer and Ivy retained Judge Kimbrough's law partner, Frederick T. Work, now Judge of the City Court, Gary, Indiana, to represent them. ¹ Defendants Spencer, Gillespie, and Fayson pleaded guilty to the robbery count, and the state dismissed the inflicting injury charge. Each was sentenced to ten to twenty-five years imprisonment. ² Hemphill pleaded guilty to an amended count of armed robbery and was sentenced to ten years imprisonment. The state dropped the charges against Ivy.

Petitioner Ross was the only defendant of the six to go on trial. Co-defendants Spencer and Ivy testified for the prosecution. The combined testimony of Spencer and Ivy was the only evidence against Ross on the robbery charge. ³ Spencer's testimony was the only evidence on the inflicting injury charge. He testified that Ross struck Father Bankerovich with a baseball bat. Tr. at 55, 56, 69 & 70. He also testified that he was not testifying pursuant to any plea agreement. ⁴ Ross testified that although she was with the five co-defendants, she did not participate in either the robbery or the assault. Tr. at 124, 129 & 143.

The jury rejected Ross' version of the events and convicted her on both counts. On June 9, 1969, the trial court sentenced Ross to life imprisonment on the inflicting injury charge and to ten to twenty years imprisonment on the robbery count.

On January 31, 1977, petitioner filed in the trial court a belated motion to correct errors. She claimed that Spencer's testimony that he was not testifying pursuant to a plea agreement was false. Thus, she was deprived of due process when the state knowingly used this false testimony. She also claimed that she was denied the effective assistance of counsel because Judge Kimbrough's representation of her was tainted by his law partner's representation of co-defendant Spencer. A hearing was conducted at which Judge Kimbrough, Judge Work, and James Stanton, the prosecutor, testified that they knew that Spencer testified against Ross pursuant to a plea agreement. Tr. of post-trial hearing at 16, 26 & 55. Notwithstanding this testimony, the trial court found that Ross failed to show any conflict of interest or that Spencer's testimony concerning the plea agreement was false.

The Indiana Supreme Court affirmed. It agreed that Ross failed to show any conflict of interest. The supreme court, however, did not decide whether the court's finding that Spencer's testimony was true was supported by substantial evidence. It found that Judge Kimbrough knew of the agreement before Spencer testified and waived any claim of error by failing to demonstrate at trial that Spencer's testimony was false. Ross v. State, Ind., 377 N.E.2d 634 (1978).

The District Court for the Northern District of Indiana also found that Ross had failed to demonstrate any conflict of interest. The court, however, granted habeas relief on Ross' due process claim. It rejected the state court finding of fact and held that Spencer's testimony about the plea agreement was false. It agreed with the Indiana Supreme Court that Ross had waived error by failing to correct the testimony at trial. Notwithstanding this waiver, the district court held that the prosecutor had an absolute duty to inform the fact-finder of any known false testimony. Ross v. Heyne, 483 F.Supp. 799 (N.D.Ind.1980).

II

A

The sixth amendment guarantees each criminal defendant the right to the effective assistance of counsel. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The courts have long recognized that this right may be impaired when counsel represents multiple defendants in the same case. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). See also Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Nevertheless, multiple representation without a showing of conflict of interest is not in itself a violation of the sixth amendment. United States v. Mandell, 525 F.2d 671, 677 (7th Cir. 1975), cert. denied, 423 U.S. 1049, 96 S.Ct. 774, 46 L.Ed.2d 637 (1976).

The typical conflict of interest claim arises when one attorney represents multiple defendants. See, e. g., Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 338 (1980); Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); United States v. Gaines, 529 F.2d 1038 (7th Cir. 1976). This appeal, however, presents a claim of conflict of interest arising from a trial in which one attorney represented the defendant while his law partner represented co-defendants who testified for the prosecution. We find that an ineffective assistance of counsel claim arising from this type of multiple representation is sufficiently analogous to the typical multiple representation case to warrant application of the same principles and analysis.

The Supreme Court has proposed an amendment to Rule 44 of the Federal Rules of Criminal Procedure that would require district court judges to inform co-defendants of their right to the effective assistance of counsel and to separate counsel. Additionally, the trial court must "promptly inquire with respect to such joint representation" whenever multiple defendants are represented by the same attorneys or by different attorneys associated in the practice of law. ⁵ The Supreme Court's proposal of this rule indicates its recognition that the potential constitutional problems attendant to multiple representation are present when different attorneys from the same legal partnership represent co-defendants with conflicting interests. We agree. "The same principles apply where the joint representation is by two members of the same firm." United States v. Helton, 471 F.Supp. 397, 399 n.1 (S.D.N.Y.1979). See also ABA, Standards Relating to the Administration of Criminal Justice, the Defense Function § 3.5(b) (1974). ⁶

B

"In 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." Cuyler v. Sullivan, 446 U.S. at 348, 100 S.Ct. 1718. An actual conflict would arise where defense counsel is unable to cross-examine a prosecution witness effectively because the attorney also represented the witness. United States v. Mavrick, 601 F.2d 921, 931 (7th Cir. 1979). The problem that arises when one attorney represents both the defendant and the prosecution witness is that the attorney may have privileged information obtained from the witness that is relevant to cross-examination, but which he refuses to use for fear of breaching his ethical obligation to maintain the confidences of his client. See Code of Professional Responsibility, Canon 4 & DR 4-101(B)(2). "The more difficult problem which may arise is the danger that counsel may overcompensate and fail to cross-examine fully for fear of misusing his confidential information." United States v. Jeffers, 520 F.2d 1256, 1265 (7th Cir. 1975), cert. denied, 423 U.S. 1066, 96 S.Ct. 805, 46 L.Ed.2d 656 (1976).

A conflict of interest would also exist where one attorney represents co- defendants, and one defendant agrees to provide evidence against the other in return for an advantageous plea bargain. United States v. Mavrick, 601 F.2d at 931. Both types of conflicts occurred in this case for two co-defendants testified against Ross in exchange for favorable treatment by the state, and Judge Kimbrough was unable to cross-examine them effectively.

The jury was faced with deciding whose version of the events should be believed Ross' or Spencer and Ivy's. Thus, witness credibility was a key factor in this case. If defense counsel had evidence impeaching Spencer or Ivy's credibility, he should have insured that it was before the jury.

Spencer was testifying pursuant to a plea agreement. Judge Kimbrough attempted to elicit testimony to that effect from Spencer, but Spencer testified that he had not been promised any consideration if he testified against Ross. ⁷ Judge Kimbrough did not introduce any evidence to show that Spencer had an...