State v. Kaye

• Decision Date: 02 February 1982
• Docket Number: No. 80-1042-CR,80-1042-CR
• Citation: 315 N.W.2d 337,106 Wis.2d 1
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. John James KAYE, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 337

315 N.W.2d 337

106 Wis.2d 1

STATE of Wisconsin, Plaintiff-Respondent, v. John James KAYE, Defendant-Appellant-Petitioner.

No. 80-1042-CR.

Supreme Court of Wisconsin.

Argued Jan. 7, 1982.

Decided Feb. 2, 1982.

William J. Tyroler, Asst. State Public Defender, for defendant-appellant-petitioner.

Thomas J. Balistreri, Asst. Atty. Gen., (argued) for plaintiff-respondent; Bronson C. La Follette, Atty. Gen., on brief.

BEILFUSS, Chief Justice.

This is a review of a decision of the court of appeals, affirming a judgment of conviction and sentence on two counts of arson as a party to the crime.

The court of appeals rejected the defendant Kaye's argument that he was denied effective assistance of counsel at sentencing because his attorney also represented his codefendant, Arthur Beiersdorf.

Kaye was charged, along with Beiersdorf, as party to the crime on two counts of arson in violation of secs. 943.03 and 943.02(1)(a), Stats. 1977. ¹ The charges arose from two incidents on November 18, 1978, in which the two defendants were alleged to have burned two garages and a car parked within each garage. Both defendants pleaded guilty pursuant to a plea bargain. They were both represented by the same attorney, Jack Goldberg. Under the terms of the plea bargain, it was agreed that the State would read in, for the purposes of sentencing, two other counts of arson as to Beiersdorf and eight others as to Kaye. ²

A factual foundation was laid by Milwaukee Detective Edward Stenzel, who conducted the investigation. He testified that the defendants told him that they intended to siphon gasoline out of one of the cars, but became upset when they were unable to do so and started a fire in the car which spread to the garage. They then proceeded to the second garage and started another fire which destroyed the car and garage. In response to a direct question, Detective Stenzel testified that Kaye told him that he had been ready and willing to render assistance to Beiersdorf in starting the fires and did, in fact, assist Beiersdorf in starting them. In the course of the investigation, Kaye was questioned regarding other suspicious fires in the area. He admitted starting the six other fires which were read in for sentencing purposes. Stenzel testified that Kaye rode with another officer and pointed out the various houses where he had set the six fires. There were police reports corroborating the fact that fires had occurred at the locations pointed out by Kaye.

After pleading guilty to the two counts of arson, Kaye also admitted committing the eight read-in arsons. However, at the sentencing hearing, some six weeks later, Kaye denied committing the six other fires which accounted for six of his eight read-ins. He did again admit that he was guilty of the two arsons with which he was charged. The trial court was obviously skeptical of this attempted retraction and suggested the prosecutor charge Kaye with the other six arsons. The prosecutor indicated that there probably would be insufficient corroborating evidence to charge Kaye with these six arsons.

Attorney Goldberg argued that Kaye should be given probation with psychiatric treatment. He characterized Kaye as "somewhat mentally ill," explaining that Kaye's sister had been murdered a year-and-a-half earlier and that Kaye began starting fires after her death. The trial court rejected the idea of giving Kaye probation. The court examined Kaye's previous criminal record and sentenced him to one year and six months on the first count and eight years consecutive on the second count. The court stated that Beiersdorf's record was less serious than Kaye's and sentenced him to one year and six months on the first count and five years concurrent on the second count.

Kaye filed a pro se motion for postconviction relief with the trial court pursuant to sec. 974.06, Stats. 1977. This motion alleged that the conviction was illegal due to several violations of the defendant's constitutional rights. Among these, Kaye claimed that the police officers had illegally entered his apartment in order to arrest him, that the police tricked him into pleading guilty by promising him a light sentence or probation, and that he was not allowed to consult an attorney during portions of his interrogation. The trial court denied this motion on August 24, 1979.

On March 18, 1980, the defendant filed a second motion for relief under sec. 974.06, Stats. 1977. On this occasion the defendant had the assistance of the public defender. The basis for the motion was that Kaye was denied his constitutional right to the effective assistance of counsel at sentencing. Kaye contended that he was less culpable than Beiersdorf, but that his attorney was prevented from making this argument because he also represented Beiersdorf. Due to this conflict of interest, Attorney Goldberg was unable to put forth the plausible argument that Kaye should receive a lighter sentence because he was less culpable than Beiersdorf. Kaye claimed that his version of the crime, as contained in a police report, indicated that he merely accompanied Beiersdorf and that Beiersdorf actually took the initiative in planning and executing the crimes. In an affidavit supporting this motion, Kaye stated that he only accompanied Beiersdorf because he was afraid that Beiersdorf would "exert violence" against him if he refused to go along.

A hearing on this motion took place on May 2, 1980. The defendant did not argue that the guilty plea should be withdrawn, but rather that he was entitled to resentencing because of his counsel's conflict of interest at his original sentencing hearing. Again the trial court denied the motion.

The defendant appealed the denial of the motion to the court of appeals. In a per curiam decision, the court of appeals affirmed the trial court's denial of the motion for resentencing. The court held that Kaye had not shown any actual conflict of interest. The contention that Goldberg was prevented from arguing Kaye's lesser culpability because of his representation of Beiersdorf was termed "pure speculation and based on mere possibilities." The defendant petitioned this court for review of the decision of the court of appeals and on August 13, 1981, we granted the petition.

The parties disagree in this case on what a defendant must show on appeal when no objection is made at trial to counsel representing multiple defendants. Both parties agree that the recent United States Supreme Court decision of Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), sets forth the test to determine when a defendant has been denied his Sixth Amendment right to counsel because of a conflict of interest on the part of his attorney. Under Sullivan a defendant must "demonstrate that an actual conflict of interest adversely affected his lawyer's performance." 446 U.S. at 348, 100 S.Ct. at 1718. However, this test may be somewhat ambiguous, as pointed out in Justice MARSHALL'S dissent in Sullivan. Kaye contends that, according to Sullivan, he need only show a divergence of interests between the defendants and a relinquishment by counsel of a plausible argument which would have aided one defendant but harmed the other. The State, on the other hand, argues that the defendant must show that the attorney's performance differed from what it would have been if the attorney had not represented the other defendant. We believe that the defendant's position is closer to the actual test and that, on the record before us, the defendant has not shown the existence of an actual conflict.

Neither this court nor the United States Supreme Court has ever held that representation by one attorney of multiple defendants constitutes a per se violation of the right to counsel of the defendants. Cuyler v. Sullivan, supra, 446 U.S. at 348, 100 S.Ct. at 1718; State v. Koller, 87 Wis.2d 253, 261, 274 N.W.2d 651 (1978). This is true despite the fact that a potential conflict of interest inheres almost every time an attorney represents more than one defendant. This potential conflict is perhaps strongest at the sentencing stage. Defendants invariably differ in either their claimed relative culpability, or in other relevant factors that enter into a sentencing decision, such as previous criminal records, education, age, employment status, intelligence, degree of contrition, and other factors. In short, it is clear that a lawyer representing more than one defendant can almost always emphasize certain factors about one defendant in an effort to minimize his sentence. If his codefendant does not possess these same factors, then a potential conflict of interest appears. However, we have held that more than such a potential conflict of interest must be shown.

Recent decisions of this court have set forth the standard which a defendant must meet in such cases:

"In order to establish that he was denied effective representation by counsel, Medrano must establish by clear and convincing evidence that an actual conflict of interest existed. Hall v. State, 63 Wis.2d 304, 311, 217 N.W.2d 352 (1974). It is not sufficient that he show that a mere possibility or suspicion of a conflict could arise under hypothetical circumstances. Harrison v. State, 78 Wis.2d 189, 201, 254 N.W.2d 220 (1977). However, Medrano does not have to show actual prejudice; once he shows an actual conflict he is entitled to relief. Hall, 63 Wis.2d at 311-312 (217 N.W.2d 352).

"The fact that one attorney represents more than one defendant is not in itself a conflict of interest and the attorney is entitled to represent more than one defendant unless the interest of the defendants is shown to be in conflict. Mueller v. State, 32 Wis.2d 70, 77, 145 N.W.2d 84 (1966)." State v. Medrano, 84 Wis.2d 11, 28, 267 N.W.2d 586 (1978).

We read Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), as imposing a test very similar to the one adopted by this court. Sullivan...