State v. Johnson, 38191

• Citation: 549 S.W.2d 348
• Decision Date: 01 March 1977
• Docket Number: No. 38191,38191
• Parties: STATE of Missouri, Plaintiff-Respondent, v. William T. JOHNSON, Defendant-Appellant. . Louis District, Division One
• Court: Court of Appeal of Missouri (US)

Page 348

549 S.W.2d 348

STATE of Missouri, Plaintiff-Respondent, v. William T. JOHNSON, Defendant-Appellant.

No. 38191.

Missouri Court of Appeals, St. Louis District, Division One.

March 1, 1977.

Motion for Rehearing and for Transfer Denied April 15, 1977.

Application to Transfer Denied May 10, 1977.

Robert C. Babione, Public Defender, Blair K. Drazic, Asst. Public Defender, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Preston Dean, J. Michael Davis, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Richard G. Callahan, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

WEIER, Judge.

Defendant William T. Johnson was convicted of murder in the second degree and the punishment assessed by the jury of thirty years imprisonment was imposed by the trial court. Defendant was with a group of young men who were approached by another group in the hallway of Sumner High School in St. Louis on March 18, 1975. This encounter erupted into a gun-firing melee resulting in the death of Stephen Goods. Defendant does not challenge the sufficiency of the evidence to support the conviction but urges four points of error which, he argues, require the judgment of conviction and assessment of punishment to be reversed. We affirm the judgment in all respects.

Initially defendant contends that he was denied the effective assistance of counsel guaranteed to him by the state and federal constitutions when the trial court denied defense counsel's motion for leave to withdraw from the case due to an alleged conflict of interest. Robert Lee was among those endorsed by the State as a prosecution witness; and on the second day of trial, well into the State's case, proceedings were held outside the hearing of the jury to determine whether Lee would testify or choose to invoke his right to remain silent. At this time the attorney who had represented Lee in a prior, unrelated criminal charge, to which Lee had entered his plea of guilty, appeared with Lee and apparently advised him of his right to remain silent. This attorney was a member of the public defender's office, as was the attorney who represented defendant. When it became apparent that Lee would invoke his right to remain silent, the assistant prosecutor informed the court that the State would not call Lee before the jury. Defendant's attorney then moved to withdraw from the case, due to the alleged conflict of interest situation which resulted from another member of the public defender's office advising a potential prosecution witness. This motion was denied and the cause proceeded. Lee was not called as a witness and neither his participation in the incident nor his potential testimony was ever suggested by the record or by counsel on appeal.

It is clear that a defendant is denied his constitutional right to the effective assistance of counsel if his attorney represents conflicting interests without the defendant's knowledge and assent and an attorney who represents both the defendant and a prosecution witness is representing conflicting interests. Ciarelli v. State, 441 S.W.2d 695, 697(2) (Mo.1969); State v. Cox, 539 S.W.2d 684, 687(3) (Mo.App.1976). Once the existence of a conflict of interest has been established a showing of actual prejudice to the accused is not necessary, since the right to counsel is "too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial." Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 467, 86 L.Ed. 680 (1942), quoted in State v. Crockett, 419 S.W.2d 22, 28 (Mo.1967). But this rule evolved out of representation of codefendants or persons charged in related criminal matters.

Here, however, the initial inquiry must be whether a conflict of interest situation actually existed. Mason v. State, 468 S.W.2d 617, 620(1) (Mo.1971). A conflict of interest such as to deny to a defendant the effective assistance of counsel must be shown by evidence. Commonwealth v. Smith, 362 Mass. 782, 291 N.E.2d 607, 609(4) (1973). In order to evidence a conflict of interest something must have been done by counsel in the trial, or something must have been foregone by counsel and lost to defendant, which was detrimental to the interests of defendant and advantageous to the interests of witness Lee. Mooring v. State, 501 S.W.2d 7, 11(4) (Mo.1973); Mason v. State, supra at 620(1). No such evidence appears in this record. It is difficult for us to imagine how the interests of defendant conflicted, per se, with those of potential prosecution witness Lee when Lee was never called as a witness due to his invocation of the right to remain silent. Absent some showing of a conflict of interest the fact that one attorney from a large public defense organization represents a defendant in a criminal trial, after another staff attorney from that same organization represented a prosecution witness in a concluded and unrelated criminal matter, does not create a per se conflict of interest at defendant's trial. People v. Wilkins, 28 N.Y.2d 53, 320 N.Y.S.2d 8, 268 N.E.2d 756 (1971). Finding no conflict of interest in the instant situation, we deny this point of defendant's appeal.

Defendant's next contention is that the trial court erred in unduly limiting his cross-examination of a key prosecution witness. This witness was a member of the deceased's group during the shooting incident, and on cross-examination defense counsel asked the witness if he was familiar with the term "flourishing." The state's objection was sustained. At the bench defense counsel made an offer of proof that, if asked, the witness would state that he was familiar with the term, knew that flourishing was a felony, and knew that one could not enter the United States Marine Corps if convicted of a felony. Defense counsel believed that this witness had flourished a weapon during the...