Shongutsie v. State
| Decision Date | 24 February 1992 |
| Docket Number | No. 90-269,90-269 |
| Citation | 827 P.2d 361 |
| Parties | Lindberg SHONGUTSIE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Lee E. Christian, Jostad Associates, Fort Collins, Colo., for appellant.
Joseph B. Meyer, Atty. Gen., Sylvia L. Hackl, Deputy Atty. Gen., Mary B. Guthrie, Jennifer L. Gimbel, Larry M. Donovan, Sr. Asst. Attys. Gen., for appellee.
Before URBIGKIT, C.J., and THOMAS, CARDINE, and GOLDEN, JJ., and BROWN, J., Ret.
The essential issue that the court must resolve in this case is whether the representation of Lindberg Shongutsie (Shongutsie) and his wife, Rebecca Shongutsie, by the same attorney at a joint trial deprived Shongutsie of his constitutional right to effective assistance of counsel. Collateral issues are presented involving the consent of Shongutsie to the joint representation; suppression by the State of discoverable materials; a claim of unlawful joinder; and the impropriety of the imposition of restitution at sentencing. We reverse and remand this case for a new trial because of the conflict of interest presented by the representation of Shongutsie and his wife by the same attorney, which led to a deprivation of his constitutional right to counsel. We deem it unlikely that the other questions will reoccur in light of this reversal, and our discussion of them will be limited.
Shongutsie presents the following issues in his Brief of Appellant:
I. Did Appellant's attorney's representation of conflicting interests deny the Appellant his Sixth Amendment right to effective assistance of counsel?
II. Did the trial court err in failing to inquire into whether the Appellant knowingly and voluntarily waived his constitutional right to conflict-free representation?
III. Did the prosecution's suppression of information that was helpful in conducting cross-examination deprive the Appellant of due process?
IV. Was it plain error for the trial court to require the joinder of four co-defendants charged with separate and distinct crimes?
V. Were restitution costs assessed by the trial court improper without a finding of ability to pay?
The State of Wyoming, as appellee, states the issues in this way:
I. Whether the representation of the appellant and his wife by retained counsel constituted ineffective assistance of counsel.
II. Whether the trial court had an affirmative obligation to inquire if the defendants approved of the joint representation.
III. Whether the State suppressed exculpatory evidence.
IV. Whether joinder of the trials of the four codefendants was proper.
V. Whether the trial court properly assessed costs of restitution on the appellant.
While arising out of a grim and repugnant background, the facts material to the disposition of this case are not complex. The Riverton Holiday Inn sponsored a public dance that commenced in the evening of September 9, 1989 and continued into the early morning hours of the following day. Citizens from the surrounding communities patronized the dance and, after it was over, a disturbance arose in the parking lot of the Holiday Inn. Personnel on the staff of the Holiday Inn and patrons of the Holiday Inn summoned the police because of the disturbance.
When they arrived, the police officers witnessed the aftermath of what had been a vicious street brawl involving an estimated twenty to thirty participants. The officers found damaged vehicles, broken windows, and a man lying on the pavement in a pool of blood. That individual was Richard "Dickie" Ferris, Jr. (Ferris), who had been severely beaten about the head. Ferris was in critical condition when transported by ambulance to the Riverton Memorial Hospital. Ferris then was transferred by air to the Wyoming Medical Center in Casper, where he died on September 14, 1989 as a result of blunt trauma to his head.
Following an investigation of these events and appropriate judicial proceedings, an information was filed charging Shongutsie with three criminal counts: I--first degree murder of Ferris; II--attempted aggravated assault of Donald Metzger, Jr.; and III--aggravated assault of Kelli Dollard. A separate information charged Rebecca Shongutsie with a single count of aggravated assault upon Ferris. Earl Warren also was charged with aggravated assault upon Ferris in a separate information. Finally, Russell Warren was charged with two counts of aggravated assault upon victims other than Ferris.
Initially, Shongutsie was provided with counsel appointed by the court. Subsequently, Shongutsie and his wife retained private counsel to represent them jointly. Earl Warren and Russell Warren each obtained the services of a separate attorney.
At their arraignments, all of the defendants entered pleas of not guilty. Following numerous motions, hearings, and conferences, the four cases were consolidated for joint trial before a jury. Initially the cases had been stacked to be tried separately with Rebecca Shongutsie's case to be tried first. Then a decision was made that Shongutsie's case should be tried first. Shongutsie objected to the joinder of the cases for trial, but argued that his case should be tried last. He told the court at a hearing on the matter that he would prefer a joint trial of all four cases to having his case tried first. The trial court then ruled that the cases would be tried jointly.
The trial commenced on June 25, 1990 and concluded on July 3, 1990. By its verdicts, the jury found: Shongutsie was not guilty of first degree murder, but guilty of the lesser-included offense of second degree murder. Also, Shongutsie was found guilty of the attempted aggravated assault of Donald Metzger, Jr. He was found not guilty of aggravated assault upon Kelli Dollard. Rebecca Shongutsie was found not guilty of the aggravated assault upon Ferris. Earl Warren was found guilty of the aggravated assault upon Ferris. Russell Warren was found guilty on only one count of aggravated assault involving a different victim.
The court sentenced Shongutsie to a term of not less than twenty, nor more than fifty, years on the charge of second degree murder and a term of not less than two, nor more than five, years on the charge of attempted aggravated assault with the sentences to run concurrently. In addition to the sentence to the Wyoming State Penitentiary, the court required Shongutsie to pay $50 on each count to the Crime Victims Compensation Fund and to pay restitution in the amount of $39,300, as well as the costs of prosecution. Shongutsie appeals from the judgment and sentence.
The primary contention in this appeal is that Shongutsie was denied his right to effective assistance of counsel in contravention of the guarantees provided in the Constitution of the United States and the Constitution of the State of Wyoming. Specifically, Shongutsie asserts that his private counsel, in his dual advocacy, was confronted with actual conflicts of interest which adversely affected Shongutsie's representation. As an example of this conflict, Shongutsie argues that an actual conflict of interest arose when counsel had to decide whether to have Rebecca Shongutsie testify, in order to exonerate herself, knowing that she had made statements prejudicial to Shongutsie which were likely to come before the jury upon cross-examination. Shongutsie urges that the following exchange between counsel for the State and Rebecca Shongutsie was particularly prejudicial to his interests in the case:
[Examination was by counsel for the State and the witness was Rebecca Shongutsie.]
Q. Okay. And after Mr. Thompson talked to you, you were in a cell with other females?
A. Yes. Two women.
Q. And at that time, you knew that the body behind the pickup was Richard Ferris, Jr., didn't you?
A. That's what Mr. Thompson had indicated to me, yes.
Q. And when you were in that cell, you made statements like, "I hope we killed him." Didn't you?
A. No, I did not.
Q. And you made statements like, "We beat him up." Didn't you?
A. No, I did not.
Q. And you made statements like, "I hope he dies."
A. No, I did not.
Q. And you made statements about, "I hope Mr. Ferris is happy now." Didn't you?
A. No.
Q. And you make a statement saying that, "Well, we threw it in a horse trailer and they'll never find it." Didn't you?
A. No.
Q. And you also made statements along the lines of, "We knocked his brains in, and I hope he dies."
A. No.
The right to counsel is guaranteed by the Sixth Amendment to the Constitution of the United States and is applicable to the states by virtue of the Fourteenth Amendment to the Constitution of the United States. In addition, it is specifically articulated in Article 1, Section 10, of the Constitution of the State of Wyoming which provides: "In all criminal prosecutions the accused shall have the right to defend in person and by counsel...." This right to counsel includes a guarantee that the assistance of counsel be effective. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The right to effective counsel encompasses the correlative rights that counsel be reasonably competent and that counsel be free from conflicts of interests. It is essential to differentiate between claims of ineffectiveness that are based upon lawyer incompetency and those that are based upon conflicts of interest arising out of multiple representation. Compare, United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (), with Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942) (). If the claim is based upon lawyer incompetency, competency is presumed, and the defendant must accept the burden of affirmatively demonstrating deficient performance by counsel and prejudice to his rights. With respect to claims based upon a conflict of interest arising from multiple representation, prejudice often is presumed. In this case, we address only the law and...
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