State v. Franklin

• Decision Date: 22 June 1981
• Docket Number: No. 80-KA-2740,80-KA-2740
• Citation: 400 So.2d 616
• Parties: STATE of Louisiana v. Kenneth FRANKLIN.
• Court: Louisiana Supreme Court

Page 616

400 So.2d 616

STATE of Louisiana v. Kenneth FRANKLIN.

No. 80-KA-2740.

Supreme Court of Louisiana.

June 22, 1981.

The 19th Judicial District Court, Parish of East Baton Rouge, Doug Moreau, J., convicted defendant of armed robbery, and defendant appealed. The Supreme Court, Lottinger, J. ad hoc, held that where same attorney was assigned to represent defendant in armed robbery prosecution and defendant's sister in forgery prosecution, defendant's sister pleaded guilty, was granted immunity from armed robbery or other related offenses, and agreed to testify against defendant, where trial court relieved attorney of his representation of defendant's sister but refused to permit attorney to withdraw from defendant's case and where trial judge apparently reasoned that defendant's sister's confession amounted to waiver of her attorney-client privilege, but where defendant's sister never expressly waived her attorney-client privilege, defendant's Sixth Amendment right to effective assistance of counsel was violated by trial court's refusal to allow attorney to withdraw his counsel of record.

Reversed and remanded.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Premila B. Chumbley, Kay Kirkpatrick, Asst. Dist. Attys., for plaintiff-appellee.

M. Michele Fournet, Baton Rouge, for defendant-appellant.

LOTTINGER, Justice Ad Hoc. ^*

This appeal by Kenneth Franklin from his armed robbery conviction is before us on the sole issue of whether Franklin received adequate assistance of counsel at trial. Specifically, Franklin contends that his attorney, who represented Franklin's sister Carolyn on a forgery charge arising out of the same circumstances as the armed robbery, was inhibited by the attorney-client privilege ¹ from effectively cross-examining Carolyn on the stand.

THE FACTS

In the evening of January 29, 1980, Franklin was riding in a car driven by sister Carolyn. The evidence at trial revealed that Franklin, who was wearing a dress, directed his sister to follow a car driven by the victim of the robbery. Carolyn, who by her own admission was intoxicated, followed the car around the winding lakeshore streets near the LSU campus in Baton Rouge. When the victim stopped her car at her apartment, Franklin got out of Carolyn's car and walked to the victim's car. The victim thought Franklin was a woman at first, but when she heard his voice telling her to roll down the window she realized he was a man. She followed his request nonetheless. The victim testified Franklin produced a gun and ordered her to turn over her purse. She complied. He then left and effected a getaway in Carolyn's car. Soon after the robbery Carolyn was caught forging the victim's signature on some of the checks taken from the victim's purse. Her arrest lead to Franklin's arrest.

The East Baton Rouge Public Defender's Office was appointed to represent both of the defendants, and Vincent Wilkins, Jr. was assigned to each case. However, the record indicates that each defendant was charged on a separate bill of information with a separate offense, and it was not until the day before Franklin's trial that either the court or Wilkins learned that the offenses arose out of the same transaction and that the two defendants were related. On July 7, 1980, Carolyn was scheduled to go to trial but she pleaded guilty as charged to the forgery offense. The prosecution then granted her immunity from the armed robbery or other related offenses if she agreed to testify against her brother.

On the same day Carolyn pleaded guilty, the jury for Franklin's trial was empaneled. On the next morning, July 8, 1980, prior to the swearing in of the first witness, Mr. Wilkins moved to withdraw as counsel of record for the defendant and his sister because of a "built-in conflict" between his representation of the two defendants. He moved that both he and the office of public defender be relieved in both cases.

In a colloquy with the trial judge, Wilkins based his motion primarily on the ground that the attorney-client privilege existing between him and Carolyn would prohibit him from effectively cross-examining Carolyn at her brother's trial. Wilkins also noted that Franklin and his sister were charged with two separate offenses and that their defenses could be antagonistic. The trial judge replied that Carolyn, by making a confession the previous day covering the time sequence before and after the armed robbery, "effectively waived her attorney client privilege as to that statement." The trial court then asked what constitutional rights of Franklin would be violated by Wilkins continuing to represent him. Wilkins responded:

"Well, your honor, I think that every individual has the right to counsel and that that right has built within it the confidence that that individual representing them is representing them in their interest and in theirs alone. But, in the present situation I am faced with what appears to be to me and certainly will appear to be to the defendants as to pan one off against the other and this is the very thing even the the possibility of semblance of that should be avoided."

The trial judge recognized that a conflict could arise:

"Only at the point in time at which the state would intend or would in fact call Carolyn Franklin to testify against this defendant would an actual conflict of interest arise, according to my way of thinking. However, because of the way in which this thing developed it appeared that there would be a conflict of interest since the state has indicated after the defendant's plea this morning that they did intend to call her to testify at the trial of this defendant."

The trial court thereupon relieved Wilkins of his representation of Carolyn Franklin, apparently because of the conflict he had just previously described. He refused, however, to relieve Wilkins or the public defender's office of the representation of Kenneth Franklin because a jury had been selected, trial was ready to proceed, and a mistrial would have to be declared. The trial judge then noted that declaration of a mistrial would require appointment of another attorney. He then reasoned:

"And, the question becomes would that attorney whoever he might be, be in a better position than you find yourself right now, and I think not. I think you probably are in a much better position than any attorney would be in the future for the simple reason that if in fact the state intends to call as a witness, Carolyn Franklin, to testify against Kenneth Franklin, you have had first hand information through your representation, your good faith representation of Carolyn Franklin and you would be in a better position than any attorney I can imagine to know whether or not Carolyn Franklin could be attacked as an incredible witness or in fact could be considered as a credible witness. And, you could, therefore, tailor your cross-examination accordingly. And, cross-examination is an important right and I think, based upon those facts, that you, more than anyone, could protect the defendant's right to cross-examination because you have whatever knowledge you have come by in good faith through your representation of Carolyn Franklin. If in fact there is information that would be favorable to Kenneth Franklin which you have in good faith received as the attorney for Carolyn Franklin, I believe it is a constitutional obligation of this court and a constitutional right of this defendant to be allowed to present that evidence. And, I can think of no one better who would be in the position to present that evidence than you because of the position that you held in good faith prior to this matter being pointed out to the court."

The trial judge also said if a conflict arose between Franklin's constitutional rights and Carolyn's attorney-client statutory rights, the constitutional rights would have greater authority. He reiterated that Carolyn Franklin, by confessing the previous day, "has divulged all information to this court in open court under oath which might be the subject of an attorney-client privilege as to this case."

The trial judge denied Wilkins' request to take a writ on the ruling to the Louisiana Supreme Court.

At the trial that followed, Franklin's confession was presented to the jury through the police officer who took it. Franklin had admitted robbing his victim but denied that he used a weapon. The officer's testimony revealed that in a search of the apartment where Franklin was staying, the victim's handbag was found. The victim's testimony as to what happened generally tracked Franklin's confession, but with one important difference. She testified that Franklin definitely had a gun during the robbery. According to Franklin's confession, he had only a hand towel wrapped around his hand and the towel appeared to be a weapon.

Carolyn Franklin's testimony added little to the state's case. She admitted that she was "driving highly intoxicated" and had a difficult time recalling exactly what happened on the evening of the alleged robbery. She admitted driving in the general vicinity of the lake area and remembered at one point that her brother had picked up something and put it in the back of the car. She did not remember how her brother was dressed, but admitted that her brother was either a homosexual or a transvestite. She noticed that her brother had another purse when she got back to Washington Street. She said she assumed he got the purse at a gas station at which they had stopped that night. She identified the victim's purse as the one she noticed in the back of her car.

On cross-examination, Wilkins hammered home the fact that Franklin was not possessing a gun and that Carolyn never saw her brother go to anybody else's car.

The jury found Franklin guilty as charged. He was sentenced to serve 15 years at hard labor without benefit of probation, parole or suspension of sentence.

ASSIGNMENT OF ERROR

The...