Thornton v. State

• Decision Date: 14 April 1987
• Docket Number: 6 Div. 667
• Citation: 513 So.2d 83
• Parties: Kenneth THORNTON and Michael Thornton v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 83

513 So.2d 83

Kenneth THORNTON and Michael Thornton v. STATE.

6 Div. 667.

Court of Criminal Appeals of Alabama.

April 14, 1987.

Rehearing Denied May 12, 1987.

Certiorari Denied Aug. 21, 1987

Alabama Supreme Court 86-1122.

Robert H. Turner of Chestnut, Sanders, Sanders, & Turner, Selma, for appellants.

Charles A. Graddick, Atty. Gen., and David B. Karn, Asst. Atty. Gen., for the State.

PATTERSON, Judge.

Appellants, Kenneth and Michael Thornton, were each found guilty, following a jury trial, of robbery in the second degree, kidnapping in the second degree, rape in the first degree, and sodomy in the first degree. The trial court sentenced each appellant to terms of twenty years in the penitentiary for the kidnapping conviction; ninety-nine years for the rape conviction; and ninety-nine years for the sodomy conviction. The court ordered that the sentences be served consecutively.

On August 20, 1983, the victim and her husband were visiting a nightclub in Birmingham, Jefferson County, known as "Baby Doe's." At approximately 12:15 a.m., they decided to return home. The victim's husband was to pay the bill and obtain their automobile, which was parked in an area some distance from the establishment. The victim went to the restroom and then proceeded outside the building to wait for her husband. As she approached the parking area, a black Oldsmobile Delta 88 automobile drove up at a fast rate of speed. A male, subsequently identified as Stanley Wilson, jumped out of the vehicle and forcibly placed the victim, who was kicking and screaming, in the back floorboard area of the car. Wilson pinned her to the floorboard by placing his feet on her chest. Two other males, subsequently identified as Kenneth and Michael Thornton, were occupying the front seat of the vehicle, with Michael driving and Kenneth in the passenger seat. As Wilson was forcing the victim into the vehicle, she dropped her purse. Wilson instructed Kenneth to retrieve the purse. The victim testified that she was "screaming" when abducted and continued to scream until Wilson "screamed" at her to "shut up."

The victim was taken to a house in Titusville. En route, she was forced to have sexual intercourse and oral sex with Wilson. At one point, Kenneth turned to watch and Wilson told him to "turn around, that he would get his turn." When the vehicle stopped at the house in Titusville, Wilson took $50 from the victim's purse. Michael took the victim's wedding rings, watch, necklace, and earrings from her person. The victim was then led, nude, into the house. During the following hours, she was repeatedly raped, sodomized, and forced to perform fellatio with Wilson, Michael and Kenneth Thornton, and three other unidentified males. The bedroom in which she was held was lighted, and she had ample opportunity to view her captors. She was subsequently returned by Wilson to the Roebuck area of Birmingham, where she was released.

I

Appellants first contend that the consolidation of their trials was fundamentally unfair because both appellants were represented by the same attorney, who allegedly had a conflict of interest. We first note that counsel was retained by appellants and that no conflict of interest contention was presented to the trial court until appellants filed a motion for a new trial. No such ground was asserted in the pre-trial proceedings pertaining to the motion to consolidate.

In addressing the conflict of interest claim raised by appellants, we find guidance in Cuyler v. Sullivan, 446 U.S. 335, 346-47, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980), wherein the Court stated:

"Holloway [v. Arkansas, 435 U.S. 475, 95 S.Ct. 1173, 55 L.Ed.2d 426 (1978),] requires state trial courts to investigate timely objections to multiple representation. But nothing in our precedents suggests that the Sixth Amendment requires state courts themselves to initiate inquiries into the propriety of multiple representation in every case. Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial. Absent special circumstances, therefore trial courts may assume either that multiple representation entails no conflict or that the lawyer and his clients knowingly accept such risk of conflict as may exist.... Unless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry." (Footnotes omitted.)

The Court continued, noting that "a possible conflict inheres in almost every instance of multiple representation," id. 446 U.S. at 348, 100 S.Ct. at 1718, and set forth the standard of review for a conflict of interest claim, where the appellant raised no timely objection at trial:

"We hold that the possibility of conflict is insufficient to impugn a criminal conviction. In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance."

Id. at 350, 100 S.Ct. at 1719.

In the instant case, appellant Kenneth Thornton had retained independent legal counsel through the preliminary hearing stage, at which time his retained attorney, C. Burton Dunn, moved to withdraw as counsel due to Kenneth Thornton's inability to pay the attorney's "legal fees for ... services in the Circuit Court proceedings." The motion to withdraw was granted, and on January 23, 1984, the court appointed attorney Hugh Henderson to represent appellant Kenneth Thornton. By letter dated February 9, 1984, Mr. Henderson informed the court that appellant Kenneth Thornton had advised him that attorney Robert Turner had been retained to represent that appellant.

Kenneth and Michael Thornton have been continuously represented by Mr. Robert Turner from February 9, 1984, to the present time. He represented them during their trial and represents them on this appeal. At no point did counsel object to the consolidation based on the ground of dual representation, either during pre-trial proceedings or during the trial, nor did counsel suggest that another attorney was desired. Therefore, we find nothing in the circumstances of this case which indicates that the trial court had a duty to inquire whether there was a conflict of interest. There was no apparent conflict of interest in the proceedings. The trial court could have properly assumed, under these facts, that the multiple representation entailed no conflicts or that appellants knowingly accepted such risk of conflict as may have existed.

Furthermore, appellants have failed to establish that multiple representation violated their Sixth Amendment right to conflict-free counsel. There is nothing in the record or presented at the hearing on appellants' motion for new trial that establishes that an actual conflict of interest adversely affected counsel's performance. See Ex parte Paradise, 477 So.2d 948 (Ala.1985).

II

Appellants contend that the State...