Tolbert v. State

• Decision Date: 23 November 2015
• Docket Number: No. S15A1073.,S15A1073.
• Citation: 298 Ga. 147,780 S.E.2d 298
• Parties: TOLBERT v. The STATE.
• Court: Georgia Supreme Court

298 Ga. 147

780 S.E.2d 298

TOLBERT

v.The STATE.

No. S15A1073.

Supreme Court of Georgia.

Nov. 23, 2015.

Tanya Danielle Jeffords, Tanya D. Jeffords, P.C., Augusta, for appellant.

Patricia B. Attaway Burton, Deputy Atty. Gen., Matthew Blackwell Crowder, Asst. Atty. Gen., Samuel S. Olens, Atty. Gen., Paula Khristian Smith, Sr. Asst. Atty. Gen., Department of Law, Kimberly Santeba Easterling, Joshua Bradley Smith, Augusta Judicial Circuit District Attorney's Office, Augusta, Rebecca Ashley Wright, Dist. Atty., Augusta Judicial Circuit District Attorney's Office, for appellee.

BLACKWELL, Justice.

Terry Gene Tolbert was tried by a Richmond County jury and convicted of murder and the unlawful possession of a firearm during the commission of a felony, both in connection with the fatal shooting of Shelley Griffin. Tolbert appeals, contending only that he was denied the effective assistance of counsel. Upon our review of the record and briefs, we see no error, and we affirm.¹

1. Viewed in the light most favorable to the verdict, the evidence shows that Leroy Sims and Dewey Sims are brothers, and Tolbert is their nephew. On January 26, 1996, following the execution of a search warrant at the residence at which Griffin lived, Griffin confronted Leroy, threatened him, and said that both Leroy and Dewey were "snitches." Griffin retrieved a pistol and then returned to complain more about the search. At that point, Dewey and Tolbert arrived at the scene, both carrying guns. Dewey and Tolbert joined Leroy, and all three quickly approached Griffin. Griffin gave his gun to a friend and urged Leroy, Dewey, and Tolbert not to use guns, but instead to fight "like a man." According to an eyewitness, Tolbert told Griffin: "Don't move, don't move, or I'm going to bust you." At some later point, Tolbert said: "[O]kay, you know. We ain't going to do nothing like that." Leroy then told Dewey to "do it"—or something along those lines—and Dewey then pointed a gun at Griffin and shot him in the head, killing him. Dewey, Leroy, and Tolbert then fled together. Although Tolbert does not dispute the legal sufficiency of the evidence, we have reviewed the entire record, and we conclude that the evidence adduced at trial was legally sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Tolbert is guilty of the crimes of which he was convicted.² Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Tolbert contends that he was denied the effective assistance of counsel at his trial because his lawyer also represented Leroy, and the concurrent representation of these two co-defendants, Tolbert says, created a conflict of interest for the lawyer. This conflict of interest, Tolbert argues, affected the way in which the lawyer represented him at trial in two distinct ways. First, he says, the lawyer did not seek out a favorable plea bargain for Tolbert, presumably because such a plea bargain might have involved Tolbert testifying against Leroy. Second, Tolbert contends, his lawyer did not argue at trial that he was less culpable than Leroy, an argument that would have been supported by the evidence, he claims, but one that posed a risk of highlighting the greater culpability of Leroy. We will address these arguments in turn, but we first recall the applicable principles of law.

(a) This Court has recognized the potential for serious conflicts of interest when one lawyer represents co-defendants in a criminal proceeding. See In re Formal Advisory Opinion 10–1, 293 Ga. 397, 400(2), 744 S.E.2d 798 (2013). Even so, the concurrent representation of co-defendants is not a "per se [violation] of constitutional guarantees of effective assistance of counsel."

Burger v. Kemp, 483 U.S. 776, 783(III), 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987) (citation and punctuation omitted). See also Ellis v. State, 272 Ga. 763, 765(2), 534 S.E.2d 414 (2000), overruled on other grounds, Alexander v. State, 297 Ga. 59, 62, 64, 772 S.E.2d 655 (2015). To prevail on a claim that a conflict of interest worked a denial of the effective assistance of counsel, a defendant like Tolbert—one who failed to object to the conflict at trial³ —must show that "an actual conflict of interest adversely affected his lawyer's performance." Cuyler v. Sullivan, 446 U.S. 335, 348(IV)(B), 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) (footnote omitted). See also State v. Mamedov, 288 Ga. 858, 860, 708 S.E.2d 279 (2011). As we consider whether Tolbert has made such a showing, we do not, however, inquire "into actual conflict as something separate and apart from adverse effect." Mickens v. Taylor, 535 U.S. 162, 172, n. 5(II), 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Rather, as the United States Supreme Court has explained, an "actual conflict of interest" means "a conflict that affected counsel's performance —as opposed to a mere theoretical division of loyalties." Id. at 171(II), 122 S.Ct. 1237 (emphasis in original). See also Sullivan, 446 U.S. at 350(IV)(C), 100 S.Ct. 1708 ("the possibility of conflict is insufficient to impugn a criminal conviction"); Lamb v. State, 267 Ga. 41, 42(1), 472 S.E.2d 683 (1996) ( "[T]he conflict must be palpable and have a substantial basis in fact. A theoretical or speculative conflict will not impugn a conviction which is supported by competent evidence.") (citation omitted). Put another way, the test of a claim that a conflict of interest worked a denial of the effective assistance of counsel is "whether the representation deprived either defendant of the undivided loyalty of counsel, i.e., did counsel slight one defendant to favor the other?" Lamb, 267 Ga. at 42(1), 472 S.E.2d 683 (citation omitted).⁴

Tolbert first asserted a conflict of interest of the part of his trial lawyer in a motion for new trial, and on that motion, he had the burden of proving that his trial lawyer had an actual conflict of interest, that is, one that significantly and adversely affected the adequacy of the representation. See State v. Abernathy, 289 Ga. 603, 604(1), 715 S.E.2d 48 (2011) ; Lamb, 267 Ga. at 42(1), 472 S.E.2d 683. In an attempt to carry his burden, Tolbert relied principally on the record of the trial, his own testimony at the hearing on his motion for new trial, and the testimony of Leroy at that same hearing. Notably, Tolbert did not elicit any testimony in support of his motion from his trial lawyer, inasmuch as the trial lawyer had passed away by the time that the motion for new trial was heard. The unavailability of his trial lawyer, however, did not relieve Tolbert of his burden. See Hicks v. State, 295 Ga. 268, 276, n. 7(3)(b), 759 S.E.2d 509 (2014) ; Schofield v. Meders, 280 Ga. 865, 867, n. 2(1), 632 S.E.2d 369 (2006).

In its order denying the motion for new trial, the trial court applied the proper standard and concluded that Tolbert had failed to carry his burden of proving that the trial lawyer was "laboring under a conflict of interest that adversely affected his representation." In support of this conclusion, the trial court made the following written findings of fact:

This Court finds that [the lawyer for Tolbert and Leroy] vigorously represented the interests of both clients during the trial. Neither client was alleged to be the shooter. Vigorously defending one client did not have an adverse impact on the other.... There is no evidence of anything that trial counsel could have done in defense of [Tolbert] that was not pursued out of a divided loyalty to [Leroy]. Specifically, this Court finds that [the lawyer] subjected the State's case against [Tolbert] to a meaningful adversarial testing in such a manner that the finder of fact made [an] informed and accurate decision as to [Tolbert's] culpability.

As we review the decision of the trial court, we owe no deference to its application of the law to the facts of this case. See Moon v. State, 288 Ga. 508, 514(8), 705 S.E.2d 649 (2011). See also Abernathy, 289 Ga. at 604(1), 715 S.E.2d 48 ; Davis v. Turpin, 273 Ga. 244, 248(3)(c), 539 S.E.2d 129 (2000). We owe substantial deference, however, to the way in which the trial court assessed the credibility of witnesses and found the relevant facts. See Moon, 288 Ga. at 514(8), 705 S.E.2d 649. To that end, we must accept the factual findings of the trial court unless they are clearly erroneous, see id., and we must view the evidentiary record in the light most favorable to the findings and judgment of the trial court. Cf. Brown v. State, 293 Ga. 787, 803(3)(b)(2), 750 S.E.2d 148 (2013) (in the context of appellate review of grant of motion to suppress, noting that deference to the fact-finding prerogative of the trial court requires an appellate court to view the evidence in the light most favorable to the findings and decision of the trial court). With these principles in mind, we turn now to the ways in which Tolbert claims that his representation was actually and substantially affected by a conflict of interest.

(b) To begin, we consider the contention that the trial lawyer for Tolbert and Leroy had a serious conflict of interest. As we have acknowledged before, in most every case in which one lawyer represents co-defendants in a criminal proceeding, there is, at the least, a potential conflict of interest, see In re Formal Advisory Opinion 10–1, 293 Ga. at 400(2), 744 S.E.2d 798, and we accept that there was some potential for a conflict of interest in this case. See Burns v. State, 274 Ga.App. 687, 689 –690(1), 618 S.E.2d 600 (2005) ("the potential for an actual conflict of interest is greater in those cases in which multiple co-defendants are represented by a single attorney than when co-defendants are represented by different attorneys"), aff'd 281 Ga. 338, 638 S.E.2d 299 (2006). Tolbert asserts, however, that the danger posed here by the potential conflict of interest was compounded by the method by which the lawyer was paid and the ways in which he communicated with his concurrent clients.

At the hearing on the ...