Sallie v. State, S98P0013.

• Decision Date: 18 May 1998
• Docket Number: No. S98P0013.,S98P0013.
• Citation: 269 Ga. 446,499 S.E.2d 897
• Parties: SALLIE v. The STATE.
• Court: Georgia Supreme Court

499 S.E.2d 897

269 Ga. 446

SALLIE v. The STATE.

No. S98P0013.

Supreme Court of Georgia.

May 18, 1998.

Christopher M. Johnson, Palmer Singleton, Atlanta, for William C. Sallie.

Richard Ernest Currie, Dist. Atty., Waycross, Wesley Scott Horney, Asst. Atty. Gen., Susan V. Boleyn, Senior Asst. Atty. Gen., Department of Law, Atlanta, for the State.

Stephen Christopher Bayliss, Atlanta, for other interested parties.

THOMPSON, Justice.

This is a death penalty case. William C. Sallie was convicted of malice murder and other crimes, and the jury recommended a death sentence.¹ Because one of Sallie's trial lawyers was laboring under a conflict of interest, we reverse the convictions and remand for a new trial.

1. Considered in the light most favorable to the verdict, the evidence showed that Sallie was embroiled in divorce proceedings with his wife, Robin. In the early morning hours of March 29, 1990, Sallie entered the home of his in-laws, where his wife and infant son were staying. He was armed with a pistol and carrying handcuffs, and he had also cut the telephone lines to the house. Sallie proceeded directly to the master bedroom and shot Robin's parents, killing his father-in-law and wounding his mother-in-law. Sallie then abducted his wife and her sister, took them to a trailer he had rented in Liberty County, and raped them. The evidence of Sallie's guilt is sufficient to support the convictions. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Sallie contends that one of his appointed trial lawyers, Wendell Boyd English, was operating under a conflict of interest that effectively denied Sallie his Sixth Amendment right to counsel. We agree. Shortly after his arrest, the trial court appointed Earl McRae to defend Sallie. McRae asked for assistance and the trial court appointed Boyd English as McRae's co-counsel in May 1990. English represented Sallie until the conclusion of his trial in March 1991.

The conflict arises from English's concurrent employment as the sole judicial law clerk for the Waycross Judicial Circuit. Employment records show that English was employed as the circuit's law clerk from April 1987 to May 1989, and from August to October 1990. He was rehired in December 1990, four months before Sallie's trial, and continued as the circuit's law clerk until 1996.

The state claims that English was a part-time law clerk who only worked for the chief judge of the circuit. English further states in his affidavit that he was hired by the chief judge as his personal law clerk and that he had no contact in his capacity as a law clerk with the other two superior court judges in the Waycross Circuit, including the trial judge. Payroll records, however, show that English was expected to work at least 40 hours per week and that his monthly pay ranged from about $1,800 in 1987 to $2,350 in 1996. In addition, English's personnel forms list his position as "Law Clerk—Waycross Judicial Circuit," and state that he serves the circuit. OCGA § 15-6-28(a), the statute which authorized English's position, provides that the chief judge of each judicial circuit can hire one law clerk or court administrator for the circuit. Thus, under state law, only one law clerk position per circuit may be compensated with state funds and English's payroll records clearly show that he was paid by the state. See OCGA § 15-6-28(a), (b), (h). Although English served at the pleasure of the chief judge of the Waycross Circuit, OCGA § 15-6-28(e), it is clear that his position served the entire circuit and all three superior court judges in the circuit.

The federal and state constitutions guarantee criminal defendants the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Ga. Const. Art. I, Sec. I. "Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest." Strickland, supra at 688, 104 S.Ct. at 2065, citing Cuyler v. Sullivan, 446 U.S. 335, 346, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980). Undivided loyalty is an essential element of the right to counsel. "Where a constitutional right to counsel exists, our Sixth Amendment cases hold that there is a correlative right to representation that is free from conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 1103, 67 L.Ed.2d 220 (1981).

We have never before addressed a conflict of interest that arises from a lawyer's simultaneous role as criminal defense attorney and law clerk in the same court where he is trying the case. We have also not uncovered any cases in other jurisdictions that present the same issue. Most criminal conflict-of-interest cases involve one attorney representing multiple defendants. See e.g. Meyers v. State, 265 Ga. 149, 150, 454 S.E.2d 490 (1995); Mitchell v. State, 261 Ga. 347, 405 S.E.2d 38 (1991); Wilson v. State, 257 Ga. 352, 359 S.E.2d 661 (1987). A few cases involve law clerks, but are unlike the situation now before us. See Todd v. State, 261 Ga. 766(14), 410 S.E.2d 725 (1991) (prosecutor employed by the district attorney's office during defendant's trial became law clerk for judicial circuit while motion for new trial was pending); Potts v. State, 259 Ga. 96(27), 376 S.E.2d 851 (1989) (former law clerk became defendant's attorney); Pope v. State, 256 Ga. 195(26), 345 S.E.2d 831 (1986) (prosecutor who worked on state's brief on direct appeal had been law clerk during defe...