State v. Grey, 98-0267
| Decision Date | 13 December 1999 |
| Docket Number | 98-0267 |
| Parties | NOTICE! No decision has been made on publication of this opinion. The opinion is subject to modification or correction by the court and is not final until the time for rehearing or further review has passed. An unpublished opinion of the court of appeals MAY NOT BE CITED by a court or by a party in any other action. The official published opinions of the Iowa Court of Appeals are those published in the North Western Reporter published by West Group. STATE OF IOWA, Plaintiff-Appellee, vs. DANIEL RALPH GREY, Defendant-Appellant./ 98-0267 IN THE COURT OF APPEALS OF IOWA Filed |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Black Hawk County, Todd A. Geer, Judge.
On appeal from his convictions for delivery of a controlled substance, failure to affix a drug tax stamp, and delivery of a controlled substance, marijuana, as an accommodation offense. REVERSED AND REMANDED.
Stephanie C. Hassler of Roeder & Hassler, Manchester, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
Heard by Huitink, P.J., and Mahan and Hecht, JJ.
Daniel R. Grey ("Grey") appeals from his convictions for delivery of a controlled substance, failure to affix a drug tax stamp, and delivery of a controlled substance, marijuana. He contends: (1) he was denied his Sixth Amendment right to counsel because his attorney also represented his co-defendant; (2) he received ineffective assistance of counsel in a number of respects; (3) he was denied a fair and impartial trial because of prosecutorial misconduct; and (4) the trial court improperly limited his cross-examination of the State's paid informant. We reverse and remand for a new trial.
I. Factual Background and Proceedings. Grey and his wife, Linda Grey, reside at a motel in Cedar Falls, Iowa. Linda is employed at the motel as the manager on a full-time basis, and Grey is employed there part-time. On April 18, 1998, Harold Wolff ("Wolff") and his daughter moved into the motel. Wolff was a paid informant hired by the Tri-County Drug Task Force to make drug purchases in the Cedar Falls area. The task force pays Wolff for each buy he completes and provides him with housing and other necessities.
During the time Wolff lived at the motel, he and the Greys became friends. He told the Greys he suffered from back pain, was very poor, and received state assistance. The Greys testified they babysat his daughter, gave him groceries, and allowed him to continue living at the motel when he had not paid his bills because they felt sorry for him.
Mr. Grey is a veteran of the Vietnam War and is partially disabled due to a work-related back injury. He claims the only relief he gets from his back pain is from smoking marijuana. Wolff told the Greys he had medication for his back, but it did not work well. After smelling marijuana in the Greys' residence, Wolff told them marijuana relieved his pain and asked them if they could sell him some. The Greys agreed to provide marijuana to Wolff and an undercover police officer posing as a friend of Wolff. Wolff notified a task force officer about the Greys' willingness to obtain drugs, and a purchase was arranged.
Drug sale transactions were completed on May 21, 1997, and on May 23, 1997. At trial, the Greys both acknowledged selling marijuana to Wolff, but asserted entrapment by government agents as a defense. On October 10, 1997, the jury found Grey guilty of all three counts. Grey appeals.
II. Standard of Review. Grey alleges on appeal that he was denied his Sixth Amendment right to counsel when the district court allowed trial counsel to represent Grey and his wife as co-defendants. He also raises issues of ineffective assistance of counsel. Because Grey raises constitutional issues, our review is de novo. State v. Fox, 491 N.W.2d 527, 530 (Iowa 1992). In our review, we independently evaluate the totality of the circumstances as evidenced by the whole record. State v. Simpson, 587 N.W.2d 770, 771 (Iowa 1998).
III. Dual Representation. Grey claims he was denied his Sixth Amendment right to counsel when the district court allowed trial counsel to represent Grey and his wife as co-defendants. The purpose of the Sixth Amendment guarantee of assistance of counsel is to ensure criminal defendants receive a fair trial. Wheat v. United States, 486 U.S. 153, 159, 108 S. Ct. 1692, 1696-97, 100 L. Ed. 2d 140, 148 (1988). The United States Supreme Court has held a defendant must establish an actual conflict of interest adversely affected the lawyer's performance in order to demonstrate a violation of Sixth Amendment rights. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S. Ct. 1708, 1719, 64 L. Ed. 2d 333, 348 (1980). In Iowa we have adopted a less stringent standard, stating "it is enough if there is a 'substantial possibility' that a conflict of interest affected the lawyer's representation." In re J.P.B., 419 N.W.2d 387, 390 (Iowa 1988); see also Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981); Jackson v. Auger, 239 N.W.2d 180, 183 (Iowa 1976); Bumgardner v. State, 401 N.W.2d 211, 213 (Iowa App. 1986). Actual prejudice need not be shown. Cosgrove v. State, 304 N.W.2d 184, 186 (Iowa 1981).
Although we review these issues de novo, the Iowa Supreme Court has indicated our review should be somewhat limited:
The legal standard is actual conflict of interest or serious potential for conflict of interest. Wheat requires that appellate courts give deference to a trial court's factual findings leading to the legal conclusion whether there is or is not an actual conflict of interest or a serious potential for conflict of interest. See Wheat, 486 U.S. at 164, 108 S. Ct. at 1700, 100 L. Ed. 2d at 152 ()
State v. Vanover, 559 N.W.2d 618, 627 (Iowa 1997) (alteration in original).
Dual representation occurs when persons jointly charged are represented by the same lawyer. State v. Gatewood, 179 N.W.2d 520, 521 (Iowa 1970). We have many times discouraged dual representation. Jackson, 239 N.W.2d at 183. In the present case, trial counsel was retained by both Mr. and Mrs. Grey and represented them throughout the entire course of the proceedings, including trial. An actual or serious potential for conflict that might occur during trial necessitates an inquiry by the court to assess its gravity. State v. Atley, 564 N.W.2d 817, 829 (Iowa 1997). The district court in this case did make a pro forma inquiry of both defendants and trial counsel as to whether counsel had discussed the potential conflicts with his clients. Both Mr. and Mrs. Grey stated they understood the possibility of conflicts and indicated they still wanted trial counsel to represent them. However, the district court did not ascertain on the record whether conflicts existed and made no findings as to whether or not there was a serious potential for conflicts.
We find many serious potential conflicts existed in this case. First, both defendants testified at trial. Trial counsel was unable to effectively question or cross-examine defendants as to the other's involvement in the transactions because, if he had done so, he would have been acting adversely to one client or the other. An attorney's freedom to cross-examine one defendant on behalf of another is restricted where the attorney represents both defendants. Gatewood, 179 N.W.2d at 522. This freedom is essential to a competent defense.
Secondly, by representing both defendants, counsel was not able to emphasize one defendant's lesser involvement as compared to the other's. The evidence demonstrates Mrs. Grey does not have a history of drug use and was only minimally involved in the transactions underlying the charges in this matter. On the other hand, Mr. Grey admitted using drugs since the Vietnam War and to current usage for medicinal purposes. In addition, Mr. Grey actually sought out the dealers, went to the dealers to pick up the marijuana, and delivered it to Wolff. If defense counsel had emphasized these facts in an effort to minimize the role of Mrs. Grey, he would have disadvantaged his other client. Furthermore, counsel was unable to discuss other differences between Mr. and Mrs. Grey. She is employed and physically fit, while he is disabled, unable to work, and arguably more vulnerable to entrapping enticements offered by undercover employees of the state. These facts could have been emphasized on behalf of Mr. Grey, but would arguably have been detrimental to Mrs. Grey.
This court is mindful we are viewing the dynamics of this case in hindsight. It is possible, even with separate counsel, the Greys might have presented a united front and claimed entrapment as their only defense. However, the dual representation by one attorney necessitated this strategy. The Greys were deprived of the possibility of independent defenses and trial strategies, and were also precluded from plea bargain possibilities which may have been available if they had been represented by separate counsel. In addition, it was a risky proposition for the Greys to lock themselves into a singular defense that would not allow for the uncertainties of trial. The court in Wheat noted:
It is a rare attorney who will be fortunate enough to learn the entire truth from his own client, much less be fully apprised before trial of what each of the government's witnesses will say on the stand. A few bits of unforeseen testimony or a single previously unknown or unnoticed document may significantly shift the relationship between multiple defendants. These imponderables are difficult enough for a lawyer to assess, and even more difficult to convey by way of explanation to a criminal defendant untutored in the niceties of...
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