Smith v. Anderson

• Decision Date: 13 September 1982
• Docket Number: No. 81-1124,81-1124
• Citation: 689 F.2d 59
• Parties: Donald SMITH, Petitioner-Appellee, v. Charles E. ANDERSON, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 59

689 F.2d 59

Donald SMITH, Petitioner-Appellee, v. Charles E. ANDERSON, Respondent-Appellant.

No. 81-1124.

United States Court of Appeals Sixth Circuit.

Argued Oct. 9, 1981.

Decided Sept. 13, 1982.

Frank J. Kelley, Atty. Gen. of Mich., Lansing, Mich., Andrea L. Solak, Asst. Pros. Atty., Detroit, Mich., for respondent-appellant.

David M. Lawson, Southfield, Mich., (Court-appointed), for petitioner-appellee.

Before JONES, Circuit Judge, and WEICK ^* and PHILLIPS, Senior Circuit Judges.

NATHANIAL R. JONES, Circuit Judge.

Petitioner, Donald Smith, individually and through his attorney, objected to the Wayne County Prosecutor's day-of-trial motion to consolidate his case with that of another defendant, Abraham Allen, charged with the same offense and represented by the same court-appointed attorney. Smith's appointed counsel, Jerrold Sherman, represented to the court that he could not effectively represent both Smith and Allen in a joint trial due to the risk of conflicting interests between the two defendants. The district court held that by requiring joint representation at the consolidated trial over petitioner's timely objection, Smith was denied effective assistance of counsel. District Judge Avern Cohn ordered the writ of habeas to issue unless the state voluntarily determined to retry Smith before a date certain. Smith v. Anderson, 505 F.Supp. 642 (E.D.Mich.1980). We affirm.

I.

On January 27, 1971, three men entered and robbed a Big Star Market in Detroit, Michigan. During the robbery a store employee and the store security guard were shot and wounded.

Two days after the incident a warrant was issued and petitioner Smith was arrested for armed robbery. On February 1, 1971, Jerrold Sherman was appointed to represent Smith. Smith waived preliminary examination. He was arraigned upon information on February 11, 1971.

On April 22, 1971, Abraham Allen was apprehended. Allen had a preliminary examination, was bound over for trial and was charged, under a separate information, with the January armed robbery of the Big Star Market. Sherman was appointed to represent him.

Smith and Allen received different dates for trial in the Recorder's Court. These dates were later changed by notice of the court and set for June 16, 1971, before the presiding judge.

On that date the cases were both reassigned to be tried by Judge Ford. ¹ Before the jury was seated, the prosecuting attorney moved to consolidate the cases. Sherman rose in opposition to the prosecutor's motion and began a colloquy concerning the joint representation:

MR. SHERMAN: It is my position in representing both of these men that defenses as to both of them differ. And I would not be able to properly defend both of them in the same action, trying them at the same time.

Now, Donald Smith waived examination. Abraham Allen had an examination conducted.

THE COURT: Did you represent both of them at (the time of Allen's preliminary examination)?

MR. SHERMAN: No, Your Honor. They were separate cases.

THE COURT: I said, did you represent both of them at the time of the Examination; were you their lawyer at that time?

MR. SHERMAN: Yes, Your Honor.

MR. SHERMAN: They don't know each other. They have never seen each other. One has a defense of just being a bystander. One says he was not there at all.

And I would oppose any motion to consolidate these cases. Because to defend both these men at the same time would be almost impossible.

THE COURT: I don't know-I can't understand what the "impossibility" addresses itself to.

May I ask this, Mr. Glicksman, have you had any discussion with Mr. Sherman previously about consolidation?

MR. GLICKSMAN: No, Your Honor, up until-I was aware of Mr. Sherman's anticipated objection.

THE COURT: (to the police officer in charge) Did I understand you had some discussion with Mr. Sherman or someone in the Prosecutor's Office had discussion with Mr. Sherman about consolidation?

MR. SHERMAN: We agreed-for trial purposes we agreed to consolidate the cases until I found out that-

THE COURT: (Interposing) When was that discussion?

OFFICER RANDOLPH: At the Examination on Mr. Allen. It was on April 27th.

THE COURT: When was Mr. Smith's Examination?

OFFICER RANDOLPH: February 29th.

THE COURT: On April 27th, which was two months subsequent to the first Examination which was held, Mr. Sherman agreed that the cases could be consolidated, is that correct?

MR. SHERMAN: That is true, Your Honor. At the time, I had no idea that the defenses would be exclusive. Because Mr. Smith waived Examination.

THE COURT: Well, he waived Examination. And I would assume you had discussed the matter with him. So you knew that a waiver would either be appropriate or inappropriate. And you thought the waiver was appropriate. I assume you had been advised as to what various matters were concerned. And if one says he was not there, I do not know what you mean when you say the defenses are mutually "exclusive".

But over and above and beyond that, Mr. Sherman, you have been representing these men for the past three or four months. And yet you come to the trial date, when you have had all kinds of time to make preliminary motions, and you have made none. And I will tell you right out that I think this is just for purposes of delay. You have had ample opportunity to address the Court in this regard, if there was any necessity for doing it. Here you come on the day all the witnesses have been called and everyone is prepared to move.

So I am going to deny your motion.

Now, is there anything further before we call the jury?

MR. GLICKSMAN: Your Honor, as I understand it, it is a motion for the People.

THE COURT: I am sorry.

The People's motion is granted.

(Emphasis added)

Defendant Smith then personally requested a different attorney to represent him in the trial. His request was denied.

After the prosecution presented its case, defense counsel made a brief opening argument and only the defendants testified for the defense. The jury returned a verdict of guilty as to both Allen and Smith.

On direct appeal, the Michigan court of appeals affirmed, finding no actual prejudice due to the joint representation. The court did not consider the trial judge's failure to explore or credit Smith's opposition to consolidating his trial with that of Allen. People v. Allen, 42 Mich.App. 195, 201 N.W.2d 353 (1972), leave to appeal denied sub nom. People v. Smith, 389 Mich. 769 (1973).

II.

The district court held an evidentiary hearing on Smith's petition for habeas corpus. Judge Cohn heard testimony from Sherman, and a representative of the Wayne County Prosecutor's Office interpreted the court records and the prosecutor's files in the case.

Sherman explained that when he expressed his assent to the idea of consolidation on the day Allen was bound over for trial he did not have a sufficient familiarity with the defenses of each defendant to recognize the possibility of conflict. The tentative nature of the agreement and its subsequent abandonment is indicated by two important factors. First, it was neither reduced to writing nor memorialized on the trial court's docket. ² Second, a month before the ultimate trial date, Sherman expressed his opposition at an informal pretrial conference at the prosecutor's office when the prosecutor broached the subject of consolidation. The prosecutor acknowledged that he was aware of Sherman's opposition to the proposal to consolidate when the day-of-trial motion to consolidate was put before the trial court. Ante at (61-62).

Both before and after Sherman's expressed opposition to the prosecutor's proposed consolidation in mid-May, 1971 until the day of trial on June 16, 1971, no motion, either oral or written, nor any stipulation pertaining to consolidation, was lodged with the trial court by the prosecutor.

III.

The foregoing makes manifest that the district court correctly found Smith's objection based on conflicting interests to be timely. The trial judge's conclusion that defense counsel was dilatory in his failure to more promptly bring his views before the bar was founded upon the erroneous premise that the cases were already consolidated and defendant had moved to sever. Ante at (61). In fact, it was the prosecutor who delayed more than a month, making his last-minute motion immediately before the jury was to be impaneled.

The predicament of defendants whose counsel is encumbered by a conflict bedeviling his or her advocacy has troubled the federal courts for at least the last forty years. See, e.g., Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Due to the attorney-client privilege, counsel for the defendant is normally the individual best able to evaluate whether he may represent more than one defendant with his effectiveness unimpaired by the duality of his trial allegiance. Accordingly, the rule developed by the federal courts in this area afford the trial attorney's judgment near decisive weight in the calculus of conflict when counsel's perception of a conflict is brought to the court's attention. Holloway v. Arkansas, 435 U.S. 475, 485-86, 98 S.Ct. 1173, 1179, 55 L.Ed.2d 426 (1975). In the realm of the Sixth Amendment, when an objection to joint representation is properly raised and dismissed without a searching review, which can demonstrate that counsel's fear for his effectiveness is groundless, a constitutional violation occurs. Holloway v. Arkansas, supra; Glasser v. United States, supra; accord, Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980). ³

As this court has stated: "A criminal defendant has a constitutional right to expect during trial that his attorney will, at all times, support him, never desert him, and will perform with reasonable competence and diligence." Wiley v. Sowders, 647 F.2d 642, 651 (6th Cir.), cert. denied, 454 U.S. 1091, 102 S.Ct. 656, 70 L.Ed.2d 630 (1981). Powell v. Alabama, 287 U.S. 45, 53 S.Ct....